Papers  from  the  Historical  Seminary 
of  Brown   University 

Edited  by  J.  FRANKLIN  JAMESON,  Ph.  D.,  Professor  of  History 

VII 

APPEALS  FROM  COLONIAL  COURTS  TO 
THE  KING  IN  COUNCIL,  WITH  ESPECIAL 
REFERENCE  TO  RHODE  ISLAND 


BY 


HAROLD  D.  HAZELTINE,  A.  B. 


REPRINTED   FROM   THE    REPORTS    OF    THE 
AMERICAN  HISTORICAL  ASSOCIATION 


PROVIDENCE,    R.    I. 
1896 


XVIII.-APPEALS   FROM  COLONIAL  COURTS  TO  THE   KING  IN 
COUNCIL,  WITH  ESPECIAL  REFERENCE  TO  RHODE  ISLAND. 


By  HAROLD  D.  HAZELTINE. 


American  history  presents  no  more  important  or  absorbing 
subject  of  consideration  than  the  origin  and  development  of 
our  colonial  institutions.  While  the  record  of  our  social  and 
political  achievements  is  fascinating  and  instructive,  the  re 
sult  of  recent  investigations  has  added  a  new  interest  to  the 
study  of  our  institutional  history;  for  we  now  appreciate  more 
fully  than  ever  that  the  systems  of  society  and  government 
developing  in  the  colonies  finally  came  to  possess  a  broader 
usefulness  in  the  constitutional  life  of  the  United  States. 

We  look  to  England  for  the  origin  of  the  essential  features 
in  our  system  of  justice,  and  the  thought  of  the  English  privy 
council  as  the  predecessor  of  our  highest  federal  tribunal 
has,  in  general  terms,  been  entertained  and  stated.  Yet  it  is 
believed  that  this  interesting  element  in  our  constitutional 
development  has  never  been  fully  presented  to  the  attention 
of  historical  scholars.  So  far  as  the  writer  knows,  no  one  has 
ever  made  a  thorough  and  systematic  investigation  of  colonial 
appeals  to  the  King  in  council.  The  importance,  however,  of 
the  practice  of  appealing  from  colonial  courts  to  that  tribunal 
as  a  court  of  last  resort  is  obvious.  This  practice  taught  the 
colonists  to  look  more  and  more  to  a  supreme  tribunal  for 
the  adjudication  of  their  legal  cases,  and  to  accept  as  law  the 
judicial  opinions  of  that  body.  It  accustomed  them  to  regard 
the  courts  of  the  different  colonies  as  but  parts  ot  a  judicial 
system  which  found  a  unifying  principle  in  a  court  of  final 
appeal.  In  short,  this  practice  prepared  them  for  the  erection 
of  a  new  court,  with  functions  similar  to  those  of  the  council, 
when  the  time  came  to  organize  a  government  for  themselves. 
During  the  development  of  this  practice,  moreover,  the  impor 
tant  doctrine  of  American  jurisprudence  which  grants  to  the 
judiciary  the  power  of  setting  aside  an  act  of  the  legislature 

299 


300  AMERICAN    HISTORICAL    ASSOCIATION. 

as  being-  repugnant  to  the  fundamental  law  of  the  land  received 
sanction  from  England  in  the  privy  council's  decision  of  a  cer 
tain  American  case.1 

The  object  of  the  present  paper  will  be  to  present  the  result 
of  recent  researches  by  the  writer  in  regard  to  this  neglected 
phase  of  our  constitutional  history.  While  it  has  been  impos 
sible  for  him,  up  to  the  present  time,  to  investigate  the  subject 
in  detail  in  more  than  one  colony,  it  is  hoped  that  the  history 
of  appeals  from  the  illustrative  colony  of  Rhode  Island,  pre 
faced  by  a  brief  survey  of  appeals  from  the  British  colonies  in 
general  prior  to  the  American  Revolution,  and  supplemented 
by  an  account  of  the  procedure  of  the  King  in  council  in  such 
cases,  will  give  some  conception  of  the  practice  in  its  relations 
to  English  and  American  institutions. 

Judge  Story  has  said2  that  "the  essential  criterion  of  appel 
late  jurisdiction  is  that  it  revises  and  corrects  the  proceedings 
in  a  cause  already  instituted,  and  does  not  create  that  cause.'7 
The  doctrine  thus  clearly  stated  by  this  eminent  American 
jurist  is  essentially  the  same  as  that  held  by  the  privy  council 
in  regard  to  its  own  jurisdiction  over  the  English  colonial 
courts.  In  the  very  first  order  in  council  regulating  appeals 
from  a  British  colony3 it  was  decreed  that  "no  appeal  in  any 
cause  or  matter,  great  or  small,  be  permitted  or  allowed  before 
the  same  matter  be  fully  examined  and  ended  by  definitive 
sentence  or  other  judgment  having  the  force  or  effect  of  a 
sentence  definitive."  While  the  King  in  council  exercised  an 
original  jurisdiction  within  certain  limits,  and  had  powers 
other  than  judicial,  such  as  those  exercised  in  the  administra 
tion  of  the  political  affairs  of  the  colonies,  the  present  inquiry 
is  concerned  only  with  matters  pertaining  to  this  appellate 
authority  over  the  judiciary  of  foreign  possessions  of  the 
Crown;  an  appeal,  as  the  term  is  here  used,  being  a  legal  pro 
ceeding  by  which  a  case  was  removed  from  a  colonial  court  to 
the  King  in  council  for  final  adjudication,  after  a  certain  defini 
tive  judgment  or  judgments  had  been  passed  upon  it  by  one 
or  more  of  the  colonial  tribunals. 


1  Winthrop  v.  Lechmere,  Connecticut,  1727-28. 

2  Commentaries  on  the  Constitution  of  the  United  States,  §  1761. 

3 Order  in  council  regulating  appeals  from  Jersey,  May  13,  1572.  See 
Macqueen's  Appellate  Jurisdiction  of  the  House  of  Lords  and  Privy  Coun 
cil,  p. 735. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  301 

It  is  well  to  remember,  in  this  connection,  that  in  much  of 
the  documentary  material  regarding  the  relations  between  the 
colonies  and  the  home  Government  the  word  "appeal"  is  not 
always  used  in  this  legal  sense.  The  word  refers  in  some 
instances  to  what  is  more  properly  designated  as  a  complaint, 
or  a  form  of  procedure  by  which  colonists  presented  to  the 
attention  of  the  Crown  certain  accusations  against  governors 
or  other  colonial  officials.1  It  refers,  in  other  instances,  to 
what  is  more  correctly  entitled  a  petition,  or  a  proceeding 
which  was  more  comprehensive  and  customary  than  a  simple 
complaint.  Even  in  certain  official  decrees  of  the  King  in 
council  the  terms  appear  to  be  confused,  regular  judicial 
appeals,  legally  granted  by  colonial  courts,  being  referred  to 
as  "petitions  of  appeal."2 

While,  however,  complaints  and  petitions,  sometimes  desig 
nated  as  appeals,  were,  as  a  usual  thing,  political  and  not  judi 
cial  in  their  character,  the  English  right  of  petition  was  oc 
casionally  used  by  the  colonists  in  judicial  proceedings.3  In 
some  cases  of  refusal  on  the  part  of  colonial  courts  to  grant 
appeals  to  England,  the  parties  aggrieved  petitioned  the  King 
in  council  to  allow  such  appeals;  and  acting  as  the  tribunal 
with  supreme  authority  over  all  colonial  courts,  the  King  and 
council  took  these  petitions  into  their  consideration,  and  either 
allowed  or  refused  the  appeal  to  their  judgment.  The  right 
of  petition  was  so  used  in  the  famous  American  cases  of  Wiu- 
throp  v.  Lechmere  and  Phillips  v.  Savage.4  On  petition,  also, 
the  appellee  sometimes  secured  the  dismissal  of  an  appeal  for 
nonprosecution,  with  the  payment  of  costs  by  the  appellant.5 
In  still  other  cases  petition  secured  relief  from  the  obstruction 
of  justice  in  colonial  courts.6 

The  right  of  appeal  to  the  Crown  in  judicial  proceedings 
was  an  established  principle  of  English  constitutional  law 
during  the  period  now  under  consideration,  and  was  clearly 
expounded  by  the  privy  council  itself.  In  the  order  in  council 


1  Colonial  Records  of  North  Carolina,  II,  p.  161-163. 

-  Order  in  council,  June  12,  1739,  deciding  Rhode  Island  case  of  Cogges- 
hall  v.  Coggeshall. 

3 Colonial  Records  of  North  Carolina,  II,  p.  161. 

4See  Chalmers's  Opinions,  II,  p.  227,  for  reference  to  petition  of  Peter 
Van  Bell,  of  Nevis,  in  1704. 

5  Order  in  council,  December  21,  1738,  deciding  Rhode  Island  case  of 
Martin  v.  Gibbs. 

'5Macqueen,  pp.  801,  805,  806. 


302  AMERICAN    HISTORICAL    ASSOCIATION. 

of  March  9,  1698,  the  governor  and  company  of  Connecticut 
were  directed  to  take  notice  that  it  was  u  the  inherent  right  of 
His  Majesty  to  receive  and  determine  appeals  from  all  His 
Majesty's  colonies  in  America;  and  that  they  govern  them 
selves  accordingly."  In  the  famous  privy  council  case  of 
Christian  v.  Corren,  appealed  from  the  Isle  of  Man  in  1716, 
this  doctrine  was  more  fully  stated,  it  being  held,  also,  that 
the  right  of  appeal  applied  to  both  subject  and  sovereign.  It 
appears,  from  the  official  record  of  this  case,1  that  the  Earl  of 
Derby,  King  of  the  Isle  of  Man,  made  a  decree  concerning 
the  lands  in  that  island,  and  that  the  person  against  whom 
this  decree  was  issued  appealed  to  the  privy  council.  The 
principal  question  at  issue  was  whether  an  appeal  should  lie 
before  the  King  in  council,  there  being  no  reservation,  in  the 
grant  made  of  the  Isle  of  Man  by  the  Crown,  of  the  subject's 
right  of  appeal  to  the  Crown.  It  was  urged  by  the  counsel 
for  the  appellant  "that  it  appearing,  in  this  case,  that  H.  4 
had  granted  the  Isle  of  Man  to  the  Earl  of  Derby's  ancestors, 
to  hold  by  homage  and  other  services,  though  there  was  no 
reservation  of  the  subject's  right  of  appeal  to  the  Crown;  yet 
this  liberty  was  plainly  implied.  For  that  such  liberty  of 
appeal  lay  in  all  cases  where  there  was  a  tenure  of  the  Crown; 
and  it  was  the  right  of  the  subjects  to  appeal  to  the  sovereign 
to  redress  a  wrong  done  to  them  in  any  court  of  justice;  nay, 
if  there  had  been  any  express  words  in  the  grant  to  exclude 
appeals,  they  had  been  void;  because  the  subjects  had  an 
inherent  right,  inseparable  from  them  as  subjects,  to  apply  to 
the  Crown  for  justice.  And  on  the  other  hand,"  the  counsel 
further  argued,  "  the  King,  as  the  fountain  of  justice,  had  an 
inherent  right,  inseparable  from  the  Crown,  to  distribute  justice 
among  his  subjects;  and  if  this  were  a  right  in  the  subjects, 
no  grant  could  deprive  them  of  it;  the  consequence  of  which 
would  be,  that  in  all  such  cases,  viz,  where  there  were  words 
exclusive  of  such  right  of  appeal,  the  King  would  be  construed 
to  be  deceived  and  his  grant  void :  also  precedents  were  cited 
in  point."  Lord  Chief  Justice  Parker,  who  assisted  at  council 
upon  this  occasion,  held  that  the  King  in  council  had  neces 
sarily  a  jurisdiction  in  this  case,  in  order  to  prevent  a  failure 
of  justice.  Upon  the  weight  of  argument  thus  presented,  the 
council  decided  that  an  appeal  lay  before  them,  and  gave  a 


Peere  Williams'  Reports,  I,  p.  329. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  303 

judgment  in  favor  of  the  appellant.  Furthermore,  the  privy 
council  instructions  by  which  the  governor  of  a  colony  was 
restrained  from  admitting  appeals  to  the  King  in  council,  when 
the  matter  or  sum  in  controversy  was  below  a  certain  pre 
scribed  value,  were  considered  as  restraints  upon  the  governor 
alone,  and  not  as  precluding  His  Majesty  from  entertaining 
appeals  in  cases  of  any  value,  where  he  should  deem  it  advis 
able;1  and  this  royal  prerogative,  or  right,  was  often  thus 
exercised  by  the  King  in  council.2 

The  exercise  of  the  right  of  appeal  secured  important  advan 
tages,  both  to  the  colonist  and  the  Crown.  To  the  colonist  it 
provided  a  means  of  relief  from  the  arbitrary  proceedings  of 
colonial  courts,  which  were  often  disposed  to  allow  political  or 
personal  views  and  prejudices  more  weight  than  justice  and 
law  in  the  formation  of  their  judicial  opinions.  It  was  bene 
ficial  to  the  Crown  for  the  reasons  that  otherwise  the  law 
designed  for  the  inferior  dominion  might  be  considerably 
changed  without  the  assent  of  the  superior  dominion,  and  that 
judgments  might  be  given  in  the  courts  of  the  inferior  domin 
ion  to  the  disadvantage  or  lessening  of  the  superiority  of  the 
Crown,  or  to  making  the  superiority  of  the  King  only  and  not 
of  the  Crown.3 

Believing  that  the  right  of  appeal  to  the  Crown  as  an  essen 
tial  element  of  English  jurisprudence  has  been  fully  substan 
tiated  by  the  facts  thus  far  presented  in  this  paper,  we  shall 
proceed  now  to  consider  the  conditions  under  which  the  privy 
council  came  to  assist  the  King  in  the  adjudication  of  these 
colonial  cases.  Two  theories  have  been  advanced  in  regard  to 
the  origin  of  this  appellate  jurisdiction  of  the  council. 

The  first  theory  is  the  one  set  forth  by  Governor  Pownall, 
in  his  treatise  on  the  administration  of  the  British  colonies  in 
America.  Governor  Pownall  asserts4  in  this  work  that  at  the 
time  of  settling  the  American  colonies  there  was  no  precedent 
of  a  judicatory  besides  those  within  the  realm,  except  in  the 
cases  of  Guernsey  and  Jersey,  which  were  remnants  of  the 
duchy  of  Normandy,  and  not  united  to  the  realm.  According 
to  the  custom  of  Normandy,  appeals  lay  to  the  Duke  in  council  ; 
and  on  this  ground  appeals  lay  from  the  judicatories  of  these 


1  Burge's  Colonial  Law,  I,  Introd.,  p.  Ivii. 

2  Chalmers's  Opinions,  II,  p.  177. 

3  Story's  Commentaries,  I,  §  175. 

4  Pownall  on  the  Colonies,  second  edition,  p.  82. 


304  AMERICAN    HISTORICAL    ASSOCIATION. 

islands  to  the  King  of  England,  as  Duke  in  council ;  and  on 
this  precedent  also  followed  appeals  from  the  courts  of  the 
American  colonies  to  the  King  in  council.  The  theory  thus 
adduced  by  Governor  Pownall  is  accepted  by  Burge,1  Millar, 
and  Clarke;  Mr.  Burge,  in  his  Colonial  Law,  affirming  that 
the  opinion  presented  by  Governor  Pownall  "  receives  confirma 
tion  from  the  practice  which  prevailed  of  making  the  reference 
of  appeals  from  Guernsey  and  Jersey  to  a  committee  of  the 
privy  council  by  a  distinct  and  separate  order  from  that  by 
which  appeals  from  the  plantations  were  referred." 

Macqueen,  in  The  Appellate  Jurisdiction  of  the  House  of 
Lords  and  Privy  Council,2  states  that  Governor  Pownall  must 
be  in  error  in  asserting  that  at  the  time  of  settling  the  Amer 
ican  colonies  there  was  no  precedent,  except  in  the  cases  of 
Guernsey  and  Jersey,  of  a  tribunal  in  England  invested  with 
jurisdiction  over  the  foreign  possessions  of  that  country;  for 
of  the  two  classes  of  parliamentary  triers  one  was  especially 
assigned  to  take  cognizance  of  petitions,  not  only  from  Guern 
sey  and  Jersey,  but  from  all  of  the  other  continental  posses 
sions  of  England — Gascony,  Aquitaine,  Guieune,  et  les  autres 
terres  et  pays  de  par  la  mer  et  des  Isles.  Furthermore,  Gover 
nor  Pownall's  assertion  that  Guernsey  and  Jersey  continued 
to  be  remnants  of  the  duchy  of  Normandy  is  not  substantiated 
by  proof  or  probability.  From  the  history  of  those  islands  it 
would  rather  appear  that  they  have  been  attached  and  faithful 
to  England  ever  since  the  date  of  the  Norman  conquest.  In 
his  opinion,  also,  PowiialFs  belief  that  appeals  were  brought 
from  the  Channel  Islands  to  the  King  in  council,  by  analogy 
to  the  Norman  practice  of  appealing  to  the  Duke  in  council, 
li  seems  alike  unnecessary  and  unwarrantable.  *  *  *  From 
the  Continues  de  Normandie  it  appears  that  an  appeal  lay  to 
the  court  of  Parliament.  An  appeal  to  the  'Duke  in  council7 
might  well  have  meant,  and  most  probably  did  mean,  the  Par 
liament;  which,  according  to  the  feudal  policy,  was  *  *  * 
always  the  last  resort  of  litigants." 

Macqueen's  theory,  indeed,  is  that  Parliament  itself  was 
previously  the  "  supreme  and  ultimate  jurisdiction"  of  Jersey 
and  Guernsey;  that  the  ancient  practice  of  England  was  to 
redress  the  grievances  of  the  Channel  Islands,  not  in  the 
privy  council,  but  in  the  court  of  Parliament.  To  prove  that 


1  Colonial  Law,  I,  Introd.,  p.xlvi. 

2  Pages  682-686. 


I 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  305 

Parliament  dispensed  justice  to  these  islands,  he  cites  a  peti 
tion  "in  Parliament©,"  which  was  sent  over  from  the  "poor 
inhabitants  of  the  isles/'  in  18  Edward  II  (A.  D.  1324-25), 
addressed  to  the  King  and  his  council.1  The  council  here 
referred  to,  Macqueen  affirms,  was  the  King's  magnum  con- 
dUum,  or  Parliament,  as  the  whole  proceeding  was  parliamen 
tary,  and  registered  as  such  in  the  liolls  of  Parliament.  It 
appears  from  this  petition,  moreover,  and  the  response  made  to 
it,  that  "the  ancient  method  of  redressing  errors  complained 
of  by  the  inhabitants  of  the  Channel  Islands  was  by  commis 
sion,  issued  in  Parliament,  and  addressed  either  to  persons  of 
local  authority,  or  to  certain  of  the  King's  judges,  sent  thither 
as  justices  itinerant;  and  when  *  *  *  the  parties  con 
tinued  still  to  be  dissatisfied,  the  highest  remedy  of  all  was  at 
last  afforded  them,  namely,  a  writ  of  error  from  chancery, 
returnable  before  the  King  in  the  court  of  Parliament.  It 
may,  indeed,  be  said  that  the  response  to  the"  above-mentioned 
"  petition  does  not  show  that  the  errors  complained  of  were 
necessarily  to  be  corrected  in  the  court  of  Parliament;  the 
terms  of  the  order  being  merely  '  to  bring  the  errors  before 
the  King,'  without  more.  But  the  material  thing  is,  that  the 
petition  is  addressed  to  the  King  and  his  council  4n  parlia- 
mento;'  and  that  the  order  for  redress  issues  from  the  Parlia 
ment.  It  is  probable,  too  (though  that  is  a  point  less  material 
to  the  present  argument),  that  the  writ  of  error  granted  to  the 
islanders  would  have  been  made  returnable  before  the  King  in 
Parliament,  in  the  usual  way,  no  other  court  being  mentioned 
in  the  response."2  It  appears  that  this  system  of  revision  by 
parliamentary  or  royal  commissioners,  with  an  ultimate  appeal 
to  the  King  in  his  magnum  concilium,  continued  until  it 
became  either  impossible  or  at  least  very  difficult  for  the 
islanders  to  obtain  redress  for  grievances  by  that  procedure. 
Finally  came  the  intermissions  of  Parliament  which  gave  rise 
to  the  erection  of  the  court  of  exchequer  chamber  for  the  de 
termination  of  writs  of  error  from  the  court  of  Queen's  bench; 
and  it  was  these  intermissions  that  occasioned  the  establish 
ment  of  a  tribunal,  in  place  of  the  court  of  Parliament,  for 


1  For  accounts  of  the  King's  various  councils,  see  Crabb's  History  of 
English  Law,  pp.  217, 218;  and  Bowyer's  Commentaries  on  the  Constitu 
tional  Law  of  England,  pp.  123-129. 

2  See  further,  Macqueen,  p.  685,  note  (d). 

H.  Mis.  91 20 


306  AMERICAN    HISTORICAL    ASSOCIATION. 

the  adjudication  of  appeals  from  tlie  Channel  Islands.  This 
snbstitutionary  tribunal  was  the  privy  council. 

Such  are  the  two  theories,  arid  in  all  justice  to  the  weight 
of  evidence  produced  by  Governor  Pownall  and  Mr.  Macqueen, 
the  theory  advanced  by  the  latter  must  be  accepted  as  the  true 
interpretation  of  the  origin  of  this  most  interesting  court  of 
appeals.  We  are  now  prepared  to  trace  the  general  history  of 
appeals  to  the  King  in  his  privy  council.  In  this  way  we  shall 
see  clearly  that  the  rise  of  the  practice  here  in  the  New  World 
was  due  in  part,  it  is  true,  to  local  causes,  but  in  a  greater 
degree  to  the  general  doctrine  that  such  a  practice  was  the 
natural  outgrowth  of  the  rights  and  liberties  of  all  British 
subjects. 

The  privy  council  began  the  exercise  of  its  functions  as  a 
court  of  review  with  the  island  of  Jersey.1  We  are  assured 
in  a  letter  received  from  the  greffier  of  Jersey  by  Mr.  Eeeve, 
of  the  council  office,  that  appeals  were  first  granted  to  the 
privy  council  from  that  island  in  the  reign  of  Henry  VIII,2 
or  between  1509  and  1547.  In  the  official  Eecords  of  the  Coun 
cil,  however,  the  first  indication  of  an  appellate  jurisdiction 
is  the  order  in  council  of  May  13,  1572,  which  provides  for 
appeals  from  Jersey.  It  appears  that  Jersey  laws  in  regard 
to  appeals  were  in  much  need  of  reformation,  and  on  the  peti 
tion  of  Helier  de  Carteret,  Lord  of  St.  Owne,  and  one  of  the 
jurats  of  justice,  the  privy  council  issued  this  order.  The 
terms  of  the  order  were — 

That  no  appeal  be  admitted  or  allowed  from  any  sentence  or  judgment 
in  any  matter  or  cause  not  exceeding  the  value  or  sum  of  seven  pounds 
sterling  of  current  English  money;  that  no  appeal  in  any  cause  or  matter, 
great  or  small,  be  permitted  or  allowed  before  the  same  matter  be  fully 
examined  and  ended  by  definitive  sentence,  or  other  judgment  having  the 
force  or  effect  to  a  sentence  definitive;  that  every  appeal  shall  be  pre 
sented  within  three  months  next  ensuing  the  sentence  or  judgment  given 
therein,  except  there  be  in  the  cause  a  lett  or  impediment  to  be  proved 
before  their  lordships,  being  the  judges  of  appeals,  and  by  their  lordships 
allowed;  that  no  appeal  be  hereafter  received  without  the  coppie,  as  well 
as  the  sentence  or  judgment,  as  also  of  the  whole  greffe  of  the  cause,  closed 
together  under  the  seal  of  the  isle.  And  that  there  be  no  lett  or  hindrance 
to  the  appellants  in  hearing  thereof,  it  is  ordered  by  the  said  lords  that 
the  bailliff  and  jurats  of  the  isle,  from  whom  the  appeal  shall  be  made, 
shall  upon  request  made  to  them  deliver  or  cause  to  be  delivered  to  the 
said  parties  appellants  the  said  coppie  within  eight  days  after  such  request. 

1  Macqueen,  p.  735. 
2Ib.,  p.  686. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  307 

The  only  regulation  in  regard  to  time  contained  in  this  order 
appears  to  be  that  the  act  of  the  court  below,  or  official  tran 
script  of  the  decree  appealed  from,  must  be  deposited  in  the 
privy  council  office  within  three  months  from  the  date  of  the 
decree.  According  to  this  order,  also,  an  appeal  might  be  car 
ried  to  the  King  in  council  in  a  matter  of  as  small  value  as  £7. 

Undoubtedly  suits  of  a  very  trivial  nature  were  actually 
appealed  to  the  council  under  this  latter  regulation ;  for  by 
an  order  of  May  19,  1671,  it  was  decreed  "that  no  appeal  for 
movable  goods  or  personal  estate  be  henceforth  allowed  unless 
it  be  of  the  value  of  three  hundred  livres  tournois1  per  annum; 
nor  for  inheritance  or  other  real  estate,  unless  of  the  value  of 
five  livres  tournois  per  annum." 

A  further  order  in  regard  to  appeals  from  Jersey  was  issued 
by  the  King  in  council  on  August  28,  1580.  This  declares 
"that  it  shall  not  be  lawful  to  appeal  in  any  cause  criminal  or 
of  correction,  nor  from  the  execution  of  any  order  taken  in  the 
Court  of  Chief  Pleas,  nor  in  Cries  of  Haro." 

While  the  writer  has  been  unable  to  find  any  privy  council 
regulations  in  regard  to  appeals  from  Guernsey,  it  is  probable 
that  such  cases  were  subject  to  the  same  or  similar  rules  as 
those  from  Jersey;  for  these  two  islands  were  for  a  long  time 
the  sole  colonial  possession  of  the  Crown,  and  were  classed 
together  as  the  Channel  Isles. 

Jersey  and  Guernsey  having  no' representative  in  Parlia 
ment,  their  interests  seemed  of  little  concern  to  that  body  or 
to  the  nation  at  large;  and,  as  we  have  already  remarked, 
Parliament  finally  came  to  be  exceedingly  lax  in  the  dispensa 
tion  of  justice  to  these  islands.  Their  inhabitants,  therefore, 
welcomed  the  change  in  England's  judicial  system  by  which 
the  adjudication  of  their  appeals  was  transferred  from  the 
court  of  Parliament  to  the  privy  council.  But  Parliament 
itself  was  not  so  willing  to  grant  to  the  privy  council,  as  an 
independent  tribunal  of  justice,  the  jurisdiction  of  appeals 
from  the  colonies.  By  an  act  of  the  Long  Parliament  the  court 
of  requests  and  the  Star  Chamber2  were  abolished,  and  it  was 
declared  that  neither  His  Majesty  nor  his  privy  council  have, 
or  ought  to  have,  any  jurisdiction  by  English  bill,  petition, 
articles,  libel,  or  any  other  arbitrary  way  whatsoever  upon  the 


'A  livre  touruois  was  equivalent  to  a  modern  franc,  or  19  cents. 
2  Both  of  these  courts  were  composed  of  privy  councilors.     See  Bow- 
yer's  Commentaries,  p.  126. 


308  AMERICAN   HISTORICAL   ASSOCIATION. 

estates  of  tlie  subject.  Yet  notwithstanding  this  action  by 
Parliament,  the  separate  and  independent  jurisdiction  that 
the  privy  council  soon  actually  possessed  was  gradually  ex 
tended  to  other  foreign  possessions  of  the  Crown,  until  at  last 
the  council's  ancient  allegiance  to  the  court  of  Parliament  was 
obsolete  and  forgotten.1 

The  general  appeal  regulations  of  the  King  and  council  ap 
plied  to  the  American  colonies,  including  Ehode  Island,  and 
are  thus  of  special  interest  and  importance  to  us  in  the  pres 
ent  inquiry. 

The  first  of  these  general  regulations  appears  to  be  an  order 
in  council  of  1683.  The  records  state  that  011  January  23  of 
that  year  it  was — 

Ordered  by  his  Majesty  in  Councill,  that  no  appeals  be  for  the  future 
admitted  at  this  Board  from  any  of  his  Majesties  fforeign  plantations, 
unless  there  be  sufficient  security  first  given  by  the  appellants,  as  well  at 
this  Board  as  in  the  respective  plantations,  to  prosecute  their  appeals  eifec- 
tually  and  to  stand  the  award  of  his  Majesty  in  councill  thereupon. 

The  order  specifies  no  definite  sum  as  necessary  for  such 
security,  but  the  appellant  in  the  case  of  Cooke  v.  Saintlo, 
appealed  from  the  island  of  Nevis  in  168G,  gave  security  in 
England  in  the  sum  of  £1,000.2 

In  1689  colonial  governors  were  directed  by  their  instruc 
tions  not  to  allow  any  appeal  to  be  made  to  the  King  in  coun 
cil  unless  the  estate  or  other  matter  in  question  amount  to 
the  value  of  £500.3  This  regulation  prevented  an  inspection 
into  the  conduct  of  governors  and  courts  in  all  cases  of  a  less 
value  than  £500,  and  thus  gave  them  an  ultimate  jurisdiction 
in  practically  all  of  the  litigation  of  the  day.  It  is  estimated, 
indeed,  that  inasmuch  as  most  of  the  suits  in  the  colonies  at 
that  time  were  in  regard  to  commerce,  not  one  in  fifty  was  of 
the  value  of  £500.  In  many  cases,  also,  where  the  governors, 
according  to  these  instructions,  ought  to  have  allowed  appeals 
they  frequently  refused  them,  on  the  ground  that  the  land, 
estate,  or  negro  slaves  sued  for  were  not  of  the  required  value, 
although  it  was  evident  that  they  were  worth  much  more.  It 
was  this  custom  of  refusing  an  appeal  in  cases  where  it  should 
have  been  granted  according  to  the  true  intent  of  the  instruc 
tions  that  largely  occasioned  the  practice,  already  referred  to, 
of  petitioning  the  King  in  council  for  permission  to  appeal. 

J  Macqueen,  p.  686. 

2  Order  in  council,  October  27,  1686. 

3  Colonial  Records  of  North  Carolina,  II,  p.  161. 


APPEALS  FROM  COLONIAL  COURTS HAZELT1NE.  309 

A  practice  iii  the  colony  with  whose  history  we  are  especially 
concerned  in  this  essay  occasioned  the  passage  of  the  next 
important  general  regulation  of  appeals.  It  often  happened 
in  cases  of  appeal  to  the  King  in  council  from  the  decisions 
of  the  Khode  Island  assembly,  as  a  court  of  error,  that  these 
decisions  were  reversed,  and  that  in  the  meantime  execution 
had  been  granted  by  the  assembly,  although  no  security  was 
given  by  the  appellee  to  make  restitution  in  case  of  reversal.1 
The  subject  was  brought  to  the  attention  of  the  privy  council, 
and  action  taken  on  July  5,  1720.  On  the  28th  of  the  same 
month  instructions  were  sent  to  all  of  the  colonies  to  suspend 
execution  in  such  cases  until  the  iinal  issue,  unless  adequate 
security  was  given  by  the  appellee. 

The  instructions  of  1746 2  form,  perhaps,  the  most  important 
of  all  the  English  regulations  of  appeals  prior  to  1776.  Accord 
ing  to  these  instructions,  in  all  the  British  colonies,  except 
those  in  which  the  courts  were  constituted  by  charters  or 
orders  in  council,  the  governors  were  directed  to  allow  appeals 
to  His  Majesty  in  council.  The  forty-seventh  instruction  pro 
vides  for  the  appeal  to  the  governor  and  council  from  the 
courts  of  law  in  the  colonies,  and  directs  that  if  either  party 
shall  be  dissatisfied  with  the  judgment  of  that  tribunal  he 
may  then  appeal  to  the  King  in  council.  This  ultimate  appeal, 
however,  was  subject  to  the  further  provisions  that — 

the  sum  or  value  so  appealed  for  unto  us  exceed  five  hundred  pounds 
sterling,  and  that  such  appeal  be  made  within  fourteen  days  after  sen 
tence,  and  good  security  given  by  the  appellant  that  he  will  effectually 
prosecute  the  same,  and  answer  the  condemnation,  as  also  to  pay  such  costs 
and  damages  as  shall  be  awarded  by  us,  in  case  the  sentence  of  the  gov 
ernor  and  council  be  affirmed:  Provided  nevertheless,  where  the  matter  in 
question  relates  to  the  taking  or  demanding  any  duty  payable  to  us,  or  to 
any  fee  of  office,  or  annual  rent,  or  any  such  like  matter  or  thing,  where 
the  right  in  future  may  be  bound;  in  all  such  cases  you  are  to  admit  the 
appeal  to  us  in  our  privy  council,  though  the  immediate  sum  or  value 
appealed  from  be  of  less  value.  And  it  is  our  further  will  and  pleasure 
that  in  all  cases  where  by  your  instructions  you  are  to  admit  appeals  to 
us  in  our  privy  council,  execution  be  suspended  until  the  final  deter 
mination  of  such  appeal,  unless  good  and  sufficient  security  be  given  to 
the  appellant  to  make  ample  restitution  of  all  the  appellant  shall  have 
lost  by  means  of  such  judgment  or  decree,  in  case  upon  the  determina 
tion  of  such  appeal  such  judgment  or  decree  should  be  reversed,  and  resti 
tution  awarded  to  the  appellant. 


1  Arnold's  History  of  Rhode  Island,  II,  p.  83. 

2  February  4,  1746. 


310  AMERICAN    HISTORICAL    ASSOCIATION. 

It  will  be  noticed  that  this  legislation  formulates  anew  the 
instructions  issued  to  governors  in  1089  and  the  order  in  council 
of  July  28,  1726.  While,  however,  the  instructions  of  1689 
provide  simply  that  an  appeal  is  to  be  allowed  where  the  estate 
or  other  matter  in  question  amounts  to  the  value  of  £500,  the 
instructions  of  1746  further  stipulate  that  in  all  cases  relating 
to  duties  payable  to  the  Crown,  fees  of  office,  annual  rents,  or 
any  such  matter,  an  appeal  shall  be  allowed,  even  though  the 
amount  involved  be  less  than  £500.  It  will  be  observed, 
further,  that  while  the  order  in  council  of  1572,  regulating 
appeals  from  Jersey,  requires  that  every  such  appeal  shall  be 
presented  within  three  months  next  ensuing  the  sentence  or 
judgment  given  in  the  island  court,  unless  for  good  reason  the 
privy  council  grant  an  extension  of  time,  the  forty-seventh  in 
struction  provides  that  appeals  be  made  within  fourteen  days 
after  sentence.  These  instructions  of  1746  applied  to  appeals 
from  the  governor  and  council  as  a  court  of  error,  but  under 
their  provisions,  inasmuch  as  there  was  no  other  instruction, 
the  governor  also  admitted  appeals  from  his  decisions  as 
chancellor  and  ordinary.1 

We  must  now  pass  on  to  the  special  consideration  of  appeals 
from  the  British  colonies  in  America. 

Among  these  possessions  of  the  Crown  were  the  islands  of 
Barbados  and  Nevis.  According  to  the  governor's  instruc 
tions,  appeals  from  all  tribunals  in  Barbados,  including  the 
court  of  exchequer,  were  first  heard  by  the  governor  and  council 
as  a  court  of  chancery;  and  if  any  party  to  a  suit  was  dissatis 
fied  with  a  decision  of  this  court  he  then  had  the  privilege  of 
appealing  to  the  King  in  council.2  Appeals  from  the  president 
and  council  as  a  court  of  chancery  in  Nevis  were  also  heard 
by  the  King  in  council;  but  appeals  from  the  president  and 
council  as  a  court  of  admiralty,  with  authority  derived  from 
the  admiralty  of  England,  were  heard  by  that  court  and  not 
by  the  King  in  council.3 

Of  the  instruments  of  government  granted  to  the  thirteen 
colonies  which  subsequently  formed  the  United  States  of 
America,  the  first  containing  reference  to  appellate  proceed 
ings  in  England  is  the  Carolina  charter  of  1663.  This  docu 
ment  stipulates  that  "the  inhabitants  of  the  said  Province, 


'Surge's  Colonial  Law,  I,  Introd.,  p.  xlviii. 
2  Chalmers's  Opinions,  II,  p.  175,  sec.  16. 
3Ib.,  II,  p.  227,  sec.  12. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  311 

nor  any  of  them,  shall  at  any  time  hereafter  be  compelled  or 
compellable,  or  be  anyways  subject  or  liable  to  appear  or 
answer  to  any  matter,  suit,  cause  or  plaint  whatsoever,  out 
of  the  Province  aforesaid,  in  any  other  of  our  islands,  colonies, 
or  dominions  in  America  or  elsewhere,  other  than  in  our  realm 
of  England,  and  dominion  of  Wales."  The  Carolina  charter  of 
1665  contains  the  same  provision.  It  is  certainly  true  that  the 
wording  in  these  charters  is  so  general  that  we  may  well  ques 
tion  whether  appeals  to  the  King  in  council  were  included 
within  their  provisions.  Yet  by  1663  the  privy  council  had 
an  independent  jurisdiction  in  colonial  cases,  and  it  is  quite 
as  safe  to  assume  that  appeals  to  this  tribunal  were  among 
the  causes  to  be  heard  in  England  as  that  reference  was  made 
exclusively  to  appellate  proceedings  in  other  English  courts. 
In  the  New  York  patent  of  1664,  however,  we  discover  direct 
reference  to  appeals.  The  instrument  states  that  Charles  II 
gives  and  grants  unto  James,  Duke  of  York,  "full  and  abso 
lute  power  and  authority  to  correct  punish  pardon  governe 
and  rule  *  *  *  saving  and  reserving  to  us  our  heirs 
and  successors  the  receiving  hearing  and  determining  of  the 
appeal  or  appeals  of  all  or  any  such  person  or  persons,  of  in  or 
belonging  to  the  territoryes  or  islands  aforesaid  in  or  touching 
any  judgment  or  sentence  to  Be  there  made  or  given."  Prac 
tically  the  same  provision  is  found  in  the  confirmatory  patent 
of  1674.  While  these  Xew  York  instruments  refer,  in  general 
terms,  to  appeals  "to  us  our  heires  and  successors,"  there  can 
be  no  doubt  that  appellate  proceedings  before  the  King  and 
his  privy  council  were  intended  by  the  framers.1 

The  New  Hampshire  commission  of  1679 2  is  apparently  the 
first  colonial  instrument  of  government  containing  definite  and 
explicit  provisions  in  regard  to  appeals  to  the  privy  council. 
The  commission  confers  both  executive  and  judicial  powers 
on  the  president  and  council,  appointed  by  the  Crown,  and 
further  recites  that — 

notwithstanding  it  is  Our  will  and  pleasure,  and  so  we  do  hereby  expressly 
declare,  that  it  shall  and  may  be  lawfull  from  time  to  time  to  and  for  all 
and  every  person  and  persons,  who  shall  think  himself  or  themselves 
aggrieved  by  any  sentence,  judgm*  or  decree  pronounced,  given  or  made 
(as  aforsd)  in,  about  or  concerning  the  title  of  any  land,  or  other  reall 

1  See  Story's  Commentaries,  I,  pp.  72,  74. 

-This  commission  passed  the  great  seal  September  18,  1679,  but  did  not 
go  into  effect  until  the  year  following. 


312  AMERICAN    HISTORICAL    ASSOCIATION. 

estate,  or  in  any  personal!  action,  or  suit  above  the  value  of  50'  and  not 
under,  to  appeal  from  said  Judging  Sentence  and  Decree  unto  us,  Our  heirs 
and  successors,  and  our  and  their  Privie  Councell.  But  with  and  under 
this  caution  and  limitation ;  That  the  Appellant  shall  first  enter  into  and 
give  good  security  to  pay  full  costs,  in  case  no  relief  shall  be  obtained  upon 
such  decree.  And  our  further  will  and  pleasure  is,  and  so  do  we  hereby 
declare;  That  in  all  criminall  cases,  where  the  punishm*  to  be  inllicted  on 
the  offenders  shall  extend  to  loss  of  life  or  limb  (the  case  of  willfull  mur 
der  excepted).  the  psn.  convicted  shall  either  be  sent  over  into  this  Our 
Kingdom  of  Engd  with  a  true  state  of  his  case  and  conviction ;  or  execu 
tion  shall  be  respited  until  the  case  shall  be  here  presented  unto  us,  our 
heirs  and  successors,  in  Our  and  their  Privie  Councell,  and  orders  sent  and 
returned  therein. 

The  charter  granted  to  William  Penu  iii  1681  for  the  govern 
ment  of  Pennsylvania  contains  practically  the  same  appeal 
provision  that  we  found  in  the  New  York  patents.  It  author 
izes  the  proprietary  to  establish  courts  of  justice,  "  Saving  and 
reserving  to  Us,  Our  heirs  and  Successors,  the  receiving,  heare- 
iug,  and  determining  of  the  appeale  and  appeales  of  all  or  any 
Person  or  Persons,  of,  in,  or  belonging  to  the  Territories  afore 
said,  or  touching  any  Judgment  to  bee  there  made  or  given."  As 
the  New  Hampshire  commission,  written  two  years  prior  to  this, 
or  in  1679,  contains  the  definite  statement  that  appeals  from 
that  colony  shall  be  "unto  us,  Our  heirs  and  successors,  and 
our  and  their  Privie  Councell,"  appeals,  not  to  the  King  alone, 
but  to  the  King  in  council,  were  unquestionably  intended  by 
the  Pennsylvania  charter.  The  fact,  moreover,  that  the  cus 
tomary  expression,  uto  us,  our  heirs  and  successors,"  is  found 
in  a  colonial  instrument  issued  subsequently  to  the  date  of  the 
carefully  worded  New  Hampshire  commission  of  1679  is  further 
proof  that  the  framers  of  the  New  York  patents  provided  in 
those  instruments  for  appeals  to  the  King  in  his  privy  council. 

The  commission  issued  to  Sir  Edmund  Andros  in  1686  for 
the  government  of  New  England  contains,  among  other  in 
structions,  the  following  in  regard  to  appeals: 

And  we  do  further  by  these  presents  will  and  require  you,  to  permit 
appeals  to  be  made,  in  cases  of  error,  from  our  Courts  in  our  said  territory 
ind  dominion  of  New  England,  unto  our  Governor  and  Council  in  civil 
causes;  provided  the  value  appealed  for,  do  exceed  the  sum  of  one  hun 
dred  pounds  sterling,  and  that  security  be  first  duly  given  by  the  appel 
lant,  to  answer  such  charges  as  shall  be  awarded  in  case  the  first  sentence 
shall  be  affirmed.  And  whereas  we  judge  it  necessary,  that  all  our  sub 
jects  may  have  liberty  to  appeal  to  our  Royal  person,  in  cases  that  may 
require  the  same,  our  will  and  pleasure  is,  that  if  either  party  shall  not 
rest  satisfied  with  the  judgment  or  sentence  of  our  Governor  and  Coun- 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  313 

cil,  they  may  then  appeal  unto  us  in  our  Privy  Council,  provided  the 
matter  in  difference  exceed  the  real  value  and  sum  of  three  hundred 
pounds  sterling;  and  that  such  appeals  be  made  within  one  fortnight 
after  sentence;  and  that  security  he  likewise  given  by  the  appelant,  to 
answer  such  charges  as  shall  he  awarded  in  case  the  sentence  of  the 
Governor  and  Council  shall  he  confirmed,  and  provided  also,  that  execu 
tion  be  not  suspended  by  reason  of  any  such  appeal  unto  us. 

The  Massachusetts  charter  of  1C91  contains  similar  provi 
sions.  It  stipulates  as  follows: 

And  whereas  Wee  judge  it  necessary  that  all  our  Subjects  should  have 
liberty  to  Appeale  to  us  our  heires  and  Successors  in  Cases  that  may 
deserve  the  same  Wee  doe  by  these  presents  Ordaiue  that  incase  either 
party  shall  not  rest  satisfied  with  the  Judgement  or  Sentence  of  any  Judi- 
catories  or  Courts  within  our  said  Province  or  Territory  in  any  Personall 
Accoii  wherein  the  matter  in  difference  doth  exceed  the  value  of  three 
hundred  Pounds  Sterling  that  then  he  or  they  may  appeale  to  us  Our 
heirs  and  Successors  in  our  or  their  Privy  Council  Provided  such  Appeale 
be  made  within  Fourteen  dayes  after  the  Sentence  or  Judgement  given  and 
that  before  such  Appeale  be  allowed  Security  be  given  by  the  party  or 
parties  appealing  in  the  value  of  the  matter  in  Difference  to  pay  or  Answer 
the  Debt  or  Damages  for  the  which  Judgement  or  Sentence  is  given  With 
such  Costs  and  Damages  as  shall  be  Awarded  by  us  Our  Heires  or  Successors 
incase  the  Judgement  or  Sentence  be  affirmed.  And  Provided  alsoe  that  no 
Execution  shall  be  stayd  or  suspended  by  reason  of  such  Appeale  unto 
us  our  Heires  and  Successors  in  our  or  their  Privy  Councill  soe  as  the  party 
Sueing  or  takeing  out  Execution  doe  in  the  like  manner  give  Security  to 
the  value  of  the  matter  in  difference  to  make  Restitucion  in  Case  the  said 
Judgment  or  Sentence  be  reversed  or  aniiul'd  upon  the  said  Appeale. 

Such  are  the  actual  appeal  provisions  in  the  organic  laws  of 
the  colonies.  While  direct  reference  to  appeals  is  not  to  be 
found  in  several  of  the  instruments,  the  fact  that  all  of  the 
charters,  with  one  exception,1  contain  a  provision  that  the 
inhabitants  of  the  colonies  and  their  children  shall  be  deemed 
British  subjects,  and  entitled  to  all  the  liberties  and  immunities 
thereof,  makes  it  clear  that  the  English  government  designed 
that  appeals  should  be  allowed  to  the  privy  council  from  all  of 
the  charter  colonies;  and  it  is  exceeding  probable  that  appeals 
were  also  allowed  from  other  colonies  than  those  under  char 
ters,  for  all  of  the  colonists  enjoyed  the  rights  and  liberties  of 
British-born  subjects,  and,  as  we  have  already  observed  in  an 


1  Pennsylvania  charter  of  1681.  Judge  Story  has  drawn  attention  to  the 
fact  that  Chalmers,  in  Annals,  I,  pp.  639,  658,  observes  that  the  clause 
was  wholly  unnecessary  in  this  charter,  as  the  allegiance  to  the  Crown 
was  reserved;  and  the  common  law  thence  inferred,  that  all  of  the  inhabit 
ants  were  subjects,  and,  of  course,  were  entitled  to  all  the  privileges  of 
Englishmen. 


314  AMERICAN    HISTORICAL    ASSOCIATION. 

earlier  part  of  the  present  discussion,  the  right  of  appeal  was 
one  of  the  most  fundamental  in  English  constitutional  law. 
But  we  have  the  authority  of  distinguished  jurists  on  this 
point.  Blackstoue,  in  speaking  of  the  charter  colonies,  affirms1 
that  they  had  courts  of  justice  of  their  own,  from  whose  deci 
sion  an  appeal  lay  to  the  King  in  council;  and  Judge  Story 
asserts 2  that  appeals  lay  to  that  tribunal,  not  only  from  the 
highest  courts  of  judicature  in  the  charter  governments,  but 
from  those  in  all  the  colonies. 

That  the  right  of  the  King  and  council  to  exercise  an  appel 
late  jurisdiction  over  the  colonial  courts  in  America  was  not 
yielded  without  a  struggle  on  the  part  of  colonial  governments 
is  evident  from  historical  events  subsequent  to  1680 5  and  to 
these  events  we  must  now  briefly  refer. 

Pitkin,  in  his  Political  and  Civil  History  of  the  United 
States,  is  authority  for  the  statements3  that  the  Crown  did  not 
interfere  in  the  judicial  proceedings  of  the  colonies,  or  claim  a 
controlling  power  over  their  judicial  tribunals,  until  about 
1680;  that  prior  to  this  period  the  general  assemblies,  in  most 
of  the  colonies,  were  the  tribunals  of  last  resort,  in  all  civil 
causes;  but  that  at  that  time  the  King  and  council  claimed  the 
right  of  receiving  and  hearing  appeals  from  the  colonial  courts, 
in  private  suits.  There  is  strong  evidence,  however,  that  the 
King  and  council  claimed  the  right  of  receiving  and  hearing 
appeals  from  the  colonies  several  years  prior  to  1680.  The 
New  York  patents  of  1664  and  1674,  and  the  New  Hampshire 
commission  of  1679,  all  contain  provisions  with  respect  to 
appeals,  But  while  it  is  not  true  that  the  Crown  did  not  claim 
a  controlling  power  over  colonial  courts  in  America  until  1680, 
it  is  probable,  nevertheless,  that  until  about  that  time  there 
had  been  no  open  denial  of  the  right  of  appeal  by  a  colonial 
government,  nor,  except  in  patents,  any  positive  declaration 
by  the  privy  council  as  to  its  right  to  hear  appeals  from  the 
colonies. 

It  appears  that  appeals  from  the  general  court  of  Virginia, 
consisting  of  the  governor  and  council,  were  heard  before  a 
joint  committee  of  both  houses  of  the  general  assembly,  the 
members  of  this  committee  from  the  house  of  burgesses  being 

1  Commentaries,  I,  p.  108. 

2  Ib.,  I,  p.  108. 

3  Vol.  I,  p.  123. 


APPEALS    FROM    COLONIAL    COURTS HAZELTINE.    315 

in  a  majority.1  In  a  particular  case  that  came  before  this 
committee  for  adjudication,  a  question  arose  as  to  whether 
those  of  its  members  from  the  council  who  had  previously 
given  their  opinion  in  the  general  court  should  again  sit  as 
judges  with  appellate  powers.  The  members  from  the  house 
of  burgesses  on  this  judicial  committee  insisted  that  the 
council  members  ought  not  so  to  act.  The  committee  members 
from  the  council,  however,  asserted  this  right,  and  in  their 
claims  were  supported  by  the  governor,  Lord  Culpepper.  The 
discussion  over  this  question  of  judicial  authority  was  carried 
to  such  an  extent  that  the  governor  presented  the  matter  to 
the  attention  of  the  King.  Soon  after  this  an  order  was  issued 
by  the  Crown  that  thereafter  no  appeal  should  be  heard  by 
the  general  assembly,  as  such  a  practice  was  inconsistent  with 
the  laws  and  practices  of  England,  but  that  all  appeals  from 
the  decisions  of  the  general  court  should  be  heard  and  deter 
mined  by  the  King  in  council,  with  the  condition  that  all  such 
appeal  cases  should  exceed  in  value  £300,  and  that  good 
security  should  be  given  to  pay  the  principal,  with  all  costs 
and  damages. 

Soon  after  this  remarkable  change  in  the  jurisprudence  of 
Virginia  appeals  were  demanded  in  some  of  the  other  colonies, 
especially  in  New  Hampshire  and  Connecticut.  These  appeals 
were  at  first  refused  by  the  colonial  authorities,  but  on  com 
plaint  being  made  to  the  King  in  council  peremptory  orders 
were  issued  to  admit  them.  A  concrete  case  will  illustrate 
the  positions  taken  by  the  colonial  government  and  by  the 
privy  council.  An  appeal  from  the  Connecticut  courts  being 
demanded  was  refused,  the  colony  justifying  its  refusal  by 
stating  to  the  King  that  by  the  charter  the  colonists  had  the 
sole  power  of  constituting  courts  and  of  deciding  ultimately  in 
all  cases  without  any  reservation  of  a  right  on  the  part  of  the 
Crown  to  revise  their  decisions.  Notwithstanding  this  firm 
position  of  the  colony,  the  King  and  council,  on  the  petition  of 
John  and  Nicholas  Hallam  and  Edward  Palmes,  issued  the 
following  order,2  March  9,  1698: 

His  Majesty  in  councill  approving  of  what  is  proposed  by  the  Councill  of 
Trade  in  their  said  representation,  is  pleased  to  order  that  the  governor 
and  company  of  the  colony  of  Connecticut  be  required  to  take  care  that  no 

1  Massachusetts  Historical  Society  Collections,  first  series,  V,  p.  139; 
Pitkin's  Political  and  Civil  History  of  the  United  States,  I,  p.  124. 
2Macqueen,  p.  805. 


316  AMERICAN    HISTORICAL    ASSOCIATION. 

obstruction  of  the  course  of  justice  be  practiced  or  allowed  amongst  them ; 
but  that  the  respective  cases  mentioned  in  the  said  representation,  and  any 
other  whatsoever  that  may  hereafter  happen  upon  differences  between  man 
and  man  about  private  rights,  be  fairly  heard  and  judged  in  the  proper 
methods  of  the  courts  established  in  that  colony.  And  in  case  the  petition 
ers  in  the  aforesaid  causes,  or  any  of  them,  or  any  other  persons,  shall  think 
themselves  aggrieved  by  the  sentence  or  sentences  which  may  be  there 
given,  they  may  thereupon  be  allowed  to  appeal  to  his  Majesty  in  councill. 
And  that  copies  of  all  records  and  other  proceedings  in  all  such  respective 
cases  be  transmitted  hither,  in  order  to  a  final  hearing  and  determination 
thereof  before  his  Majesty  in  councill.  And  that  in  all  such  cases,  the 
governor  and  company  of  the  colony  of  Connecticutt  do  take  notice  that 
it  is  the  inherent  right  of  his  Majesty  to  receive  and  determine  appeals 
from  all  his  Majesty's  colonys  in  America;  and  thai  they  do  govern  them 
selves  accordingly. 

Authoritative  as  was  tliis  order,  the  colony  of  Connecticut, 
imagining  that  the  King  was  taking  away  its  charter  rights, 
still  refused  to  admit  appeals,  and  the  governor  even  went  so 
far  as  to  declare  that  before  an  appeal  should  be  allowed  "they 
would  dispute  the  point  with  His  Majesty." ]  A  second  com 
plaint  being  made  and  further  orders  issued  by  the  King  in 
council,  an  appeal  was  finally  granted  in  June,  1701.  We  are 
assured  by  one  authority,2  however,  that  even  as  late  as  1755 
no  appeals  were  allowed  to  the  King  in  council  from  Connec 
ticut;  that  some  had  been  carried  to  England  by  way  of  com 
plaint,  but  that  in  all  of  these  there  had  been  no  relief  except 
in  the  case  of  John  Winthrop. 

Notwithstanding  the  explicit  directions  in  the  New  Hamp 
shire  commission  of  1679,  that  colony  also  resisted  for  a  time 
the  right  of  the  King  and  council  to  hear  appeals  from  its 
courts.  Yet  New  Hampshire  appeals  were  actually  received 
by  the  King  in  council,  for  in  the  privy  council  register  we 
read  "that  on  the  22nd  of  April,  1685,  William  Yaughan,  in 
habitant  and  planter  in  New  Hampshire,  entered  his  appeale 
against  several  verdicts  and  judgments,  one  fine,  and  one  de 
cree,  given  against  him  in  New  Hampshire  aforesaid." 

After  the  English  Revolution,  the  charter  colonies  were  not 
allowed  to  continue  long  in  the  peaceful  administration  of 
their  affairs.  Their  disregard  of  the  navigation  acts  and  their 
denial  of  the  right  of  appeal  to  the  King  in  council  in  judicial 
proceedings  were,  perhaps,  the  chief  causes  for  hostile  senti 
ment  on  the  part  of  the  British  Government.  It  was  a  very 


iPitkin's  Political  and  Civil  History  of  the  United  States,  p.  125. 
a  Douglass's  Summary,  II,  p.  174. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  317 

general  opinion  in  England,  also,  that  the  colonies  under  the 
charter  form  of  government  were  seeking  to  secure  their  inde 
pendence.  In  1701,  therefore,  a  bill  was  introduced  in  Parlia 
ment,  the  passage  of  which  would  unite  all  the  charter  colonies 
directly  to  the  Crown,  including  Massachusetts,  New  Hamp 
shire,  Rhode  Island,  Connecticut,  Maryland,  East  and  West 
Jersey,  Pennsylvania,  Carolina,  and  the  Bahama  Islands. 
About  this  time,  the  lords  of  trade,  in  a  letter  to  the  Earl  of 
Bellomont,  say  that— 

This  declining;  to  admit  appeals  to  his  Majesty  in  council  is  a  matter 
that  you  ought  very  carefully  to  watch  against  in  all  your  governments. 
It  is  an  humour  that  prevails  so  much  in  the  proprietor's  and  charter  col 
onies,  and  the  independency  they  thirst  after  is  now  so  notorious,  that  it 
has  been  thought  fit,  these  considerations,  together  with  other  objections 
against  these  colonies,  should  be  laid  before  the  parliament ;  and  a  bill 
has  thereupon  been  brought  into  the  house  of  lords,  for  reuniting  the 
right  of  government  in  these  colonies,  to  the  crown. 

The  bill,  however,  was  defeated,  largely  through  the  efforts 
of  colonial  agents  who  were  given  a  hearing  before  the  House 
of  Lords. 

The  enemies  of  the  charter  and  proprietary  colonies  were 
not  discouraged  by  the  failure  of  this  bill,  and  continued  to 
enter  their  complaints  before  the  King  and  the  board  of  trade. 
Taking  advantage  of  the  just  complaints  of  the  inhabitants  of 
Carolina,  in  regard  to  the  conduct  of  the  proprietors  of  that 
province, l  they  succeeded  in  bringing  to  the  attention  of  Par 
liament,  in  the  beginning  of  the  reign  of  George  I,  the  subject 
of  annulling,  not  only  the  charter  of  Carolina  but  those  of  the 
other  colonial  governments  as  well.  Once  more,  however,  these 
efforts  were  unsuccessful. 

This  general  history  of  colonial  appeals  would  be  incomplete 
without  a  brief  account  of  three  concrete  cases  which,  though 
not  originating  in  Khode  Island,  illustrate  in  a  striking  man 
ner  the  vital  importance  which  might  sometimes  attach  to  a 
colonial  appeal.  In  these  three  cases  the  validity  of  impor 
tant  colonial  laws  was  brought  directly  into  question,  and  the 
record  of  these  cases  forms,  therefore,  a  separate  and  most 
interesting  chapter  in  our  legal  history.  Let  us  briefly  con 
sider,  therefore,  the  leading  facts  in  connection  with  Winthrop 
v.  Lechinere,  Phillips  v.  Savage,  and  Clark  v.  Tousey. 

'See  Colonial  Records  of  North  Carolina,  II,  p.  121, 


318  AMERICAN    HISTORICAL    ASSOCIATION. 

The  Connecticut  case  of  Wintkrop  v.  Leckmere '  is,  perhaps, 
tke  most  famous  of  all  tke  American  colonial  cases,  for  in  tkis 
case  tke  validity  of  colonial  law  was  not  only  brought  into 
question,  but  a  certain  statute  was  actually  set  aside  by  tke 
King  in  council  as  being  repugnant  to  the  common  law  of 
England. 

In  1692  Massachusetts  passed  an  act  for  tke  settlement  and 
distribution  of  the  estates  of  intestates.  Fn  1699  the  assembly 
of  Connecticut  passed  a  similar  act,2  according  to  the  pro 
visions  of  which  the  real  estate  of  an  intestate  was  divided 
among  his  children,  giving,  however,  a  double  portion  to  the 
eldest  son.  General  Wait  Still  Wintkrop,  son  of  Governor 
Jokn  Wiuthrop,  of  Connecticut,  died  in  1717  intestate,  leaving 
two  children,  John  Wintkrop,  and  Ann,  wife  of  Thomas  Lech- 
niere,  tke  defendant  in  tkis  case.  General  Winthrop's  landed 
estates  in  Connecticut  were  large,  and  the  administration 
of  them  was  now  committed  to  John  Wintkrop.  Wintkrop, 
kowever,  claimed  all  the  real  estate  as  his  own,  holding  that 
he  was  General  Winthrop's  sole  heir  under  the  common  law 
of  England,  and  that  the  colonial  statute  of  1699,  by  which 
he  would  be  entitled  to  two-thirds  and  his  sister  to  one-third 
of  tke  estate,  Avas  invalid,  as  being  contrary  to  tke  higher  law 
of  the  home  country. 

Winthrop  continuing  to  hold  the  entire  estate,  in  1724 
Thomas  Leckmere  applied  to  the  court  of  probate  of  Connecti 
cut,  claiming,  in  right  of  kis  wife,  a  proportion  of  the  real 
estate  left  by  General  Winthrop,  and  asserting  that  he  was 
kept  out  of  it  by  reason  of  the  fact  that  the  administrator  had 
not  inventoried  and  administered  the  same.  Winthrop  replied 
by  showing  an  inventory  of  tke  personal  estate,  claiming  that 
administrators  had  nothing  to  do  witk  lands,  as  tkey  belonged 
to  tke  keir  at  law — in  this  case  himself — according  to  the  law 
of  England. 

After  nearly  two  years  of  litigation  in  the  courts  of  Con 
necticut  and  Massachusetts,  the  superior  court  of  Connecticut, 


1  Connecticut  Historical  Society  Collections,  IV,  p.  94,  note;  Massachu 
setts  Historical  Society  Collections,  sixth  series,  V,  p.  496,  and  VI; 
Massachusetts  Historical  Society  Proceedings,  second  series,  VIII,  pp. 
125-137;  Massachusetts  Historical  Society  Proceedings,  first  series, 
1860-1862,  pp.  66,  67.  Professor  C.  M.  Andrews'  article,  "The  Connecticut 
Intestacy  Law/'  in  the  Yale  Review,  November,  1894. 

2 The  Connecticut  charter  gave  the  assembly  the  right  to  make  laws, 
provided  they  were  not  contrary  to  the  laws  of  England. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  319 

on  March  22,  1725-26,  caused  the  letters  of  administration 
granted  to  Winthrop  to  be  vacated,  and  appointed  Thomas 
Lechmere  and  Ann,  his  wife,  administrators  of  the  estate.  At 
the  next  session  of  the  general  assembly  Wiuthrop  presented 
a  petition,  and  declared  that  he  would  appeal  to  the  King  in 
council,  although  by  so  doing  he  would  ignore  the  highest  court 
in  Connecticut,  to  which  the  case  should  have  been  carried, 
according  to  colonial  law.  Winthrop's  petition  being  dismissed 
by  the  assembly,  he  entered  a  most  vigorous  protest;  and  the 
assembly  thereupon  ordered  the  sheriff  to  bring  him  before  the 
bar  of  that  body  to  answer  for  the  contempt  manifested  in  the 
protest.  Wmthrop,  however,  escaped  in  the  night,  before  the 
sheriff  could  arrest  him,  and  according  to  previous  threats  pre 
sented  his  case  to  the  Kin-g  in  council  by  petition,  claiming  that 
the  Connecticut  act  was  contrary  to  the  laws  of  England.  The 
case  was  tried  before  the  King  in  council,  and  a  decree  was 
finally  issued  by  that  tribunal,  on  February  15, 1728,  declaring 
the  Connecticut  law  entitled  "An  act  for  the  settlement  of 
intestate  estates ''  null  and  void,  as  being  repugnant  to  English 
law,  reversing  the  decisions  of  the  Connecticut  courts  and 
giving  the  whole  of  the  real  estate  to  John  Winthrop. 

Iteversing,  as  it  did,  the  policy  of  distributing  and  settling 
intestate  estates  which  had  prevailed  in  Connecticut  from 
the  beginning  of  its  history,  and  thus  affecting  every  person  in 
the  colony,  the  order  caused  great  alarm.  But  not  in  Connec 
ticut  alone  was  there  consternation  at  this  sudden  overturning 
of  established  conditions.  Other  New  England  colonies  had 
intestate  laws  and  practices  similar  to  those  of  Connecticut, 
and  no  one  could  tell  how  soon  these  would  also  be  subverted 
by  the  King  and  council.  The  issues  presented  by  this  case 
were  so  important  to  all  of  the  colonists  that  the  government 
of  Connecticut  at  once  made  active  and  strenuous  efforts  to 
secure  a  reversal  of  the  privy  council's  decision.  During  the 
pendency  of  negotiations  for  the  effecting  of  this  end,  a  Mas 
sachusetts  case,  similar  to  Winthrop  v.  Lechmere,  was  carried 
to  the  King  in  council  for  final  adjudication.  This  was  the 
case  of  Phillips  r.  Savage.1 

Henry  Phillips,  of  Boston,  killed  Benjamin  Woodbridge  in 
a  duel  on  the  Common  July  3, 1728,  and  at  once  tied  to  France. 
He  died  there  about  a  year  afterwards,  intestate,  leaving  his 


1  Massachusetts   Historical  Society  Proceedings,  first  series,  1860-1862, 
pp.  64-80,  164-171. 


>** 
320  AMERICAN    HISTORICAL    ASSOCIATION. 

mother,  two  sisters  (one  the  wife  of  Habijah  Savage  and  the 
other  the  wife  of  Arthur  Savage),  and  the  children  of  a 
deceased  sister,  Mrs.  Butler.  Administration  on  his  estate, 
appraised  at  £3,950,  was  granted,  July  17, 1730,  to  his  brother, 
Gillani  Phillips.  On  April  6,  1733,  the  judge  of  probate  for 
Suffolk  County  issued  a  warrant  to  five  freeholders,  by  Avhich 
they  were  directed  "to  make  a  just  and  equal  division,  or  par 
tition,  of  the  estate,  in  housing  and  lands,  whereof  Henry 
Phillips,  late  of  Boston,  gentleman,  deceased  intestate,  died 
seized  and  possessed,  between  his  mother,  brother,  sisters,  or 
their  legal  representatives,  in  five  equal  parts  or  shares."  The 
freeholders  so  appointed  performed  the  service  as  thus  directed, 
and  made  report  on  May  11,  1733.  On  May  15  following  the 
judge  of  probate  allowed  and  confirmed  their  action,  in  probate 
court. 

On  October  18, 1733,  Gillani  Phillips  appealed  to  the  governor 
and  council  from  this  decree  of  the  judge  of  probate  confirm 
ing  the  action  of  the  committee  of  freeholders,  which  he  insisted 
was  wrong  and  erroneous,  for  he,  Gillam  Phillips,  as  the  only 
brother  of  the  deceased,  was  his  heir,  by  the  common  law  of 
England.  On  November  2,  1733,  there  was  a  hearing  of  the 
case  before  the  governor  and  council.  This  tribunal  affirming 
the  decree  of  the  judge  of  probate,  Phillips,  011  November  fol 
lowing,  presented  a  petition  to  the  governor  and  council,  pray 
ing  to  be  allowed  an  appeal  from  their  decision  to  the  King  in 
council.  The  petition  was  dismissed  by  the  governor  and 
council,  but  by  an  order  of  the  King  in  council,  February  12, 
1734,  Phillips  was  permitted  to  appeal  from  the  order  of  the 
judge  of  probate  of  April  G,  1733,  issuing  the  warrant  to  the 
committee  of  five  freeholders  to  divide  the  real  estate;  from 
the  order  of  the  judge  of  probate  of  May  15, 1733,  allowing  and 
confirming  the  return  of  the  committee;  and  from  the  order 
of  the  governor  and  council  of  November  2,  1733,  affirming 
the  decree  of  the  judge  of  probate.  The  case  was  tried  before 
the  privy  council  on  January  13  and  1G,  1738.  The  orders  or 
decrees  appealed  from  were  affirmed  and  the  appeal  dismissed. 

The  question  at  issue  in  both  of  these  cases  was  exactly  the 
same — the  validity  of  the  colonial  statutes — and  there  can  be 
no  doubt  that  the  laws  regarding  intestate  estates,  both  in  Con 
necticut  and  Massachusetts,  were  contrary  to  the  common  law 
of  England.  It  seems  strange,  therefore,  that  we  should  find 
the  privy  council  deciding  so  differently  in  the  two  cases.  But 


APPEALS  FROM  COLONIAL  COURTS HAZELTINK.  321 

the  reason  is  here.  The  Massachusetts  charter  empowered  the 
colony  to  make  and  establish  laws,  provided  they  be  not  con 
trary  to  the  laws  of  England,  requiring  also  that  these  colonial 
laws  be  sent  over  to  be  approved  or  disallowed  by  the  King  in 
council.  The  Massachusetts  act  of  1692,  providing  for  the  set 
tling  of  intestate  estates,  being  thus  transmitted  to  the  Crown, 
was  solemnly  confirmed  by  an  order  in  council;  and  in  pursu 
ance  of  the  powers  specified  in  this  order,  the  governor,  council 
and  assembly  of  the  colony  passed  several  explanatory  acts  in 
1710,  1715,  and  1719,  which  were  not  disallowed  by  the  Crown. 
Again,  in  1695,  the  act  of  1692  was  specially  confirmed  by  the 
then  lords  justices  in  council.  The  Connecticut  charter,  how 
ever,  contained  no  provision  in  regard  to  sending  over  colonial 
laws  for  the  approval  or  disallowance  of  the  Crown.  When 
the  Connecticut  appeal  came  before  the  King  in  council,  there 
fore,  they  were  left  free  to  decide,  un  trammeled  by  any  previous 
confirmation  of  the  law  in  question.  But  when  the  Massachu 
setts  appeal  was  presented  to  His  Majesty  in  council,  they  were 
necessarily  compelled  to  take  into  consideration  their  past 
action  in  regard  to  the  colonial  statutes.  This,  it  is  believed,  is 
the  explanation  of  an  apparent  inconsistency  in  the  action  of 
the  privy  council  with  regard  to  these  two  cases. 

The  decision  of  the  privy  council  in  the  case  of  Phillips  r. 
Savage  greatly  encouraged  the  people  of  Connecticut  in  their 
efforts  to  secure  the  reestablishment  of  their  intestate  law. 
The  opportunity  of  presenting  the  law  to  the  King  in  council 
for  a  second  judgment  upon  its  validity  finally  came  in  a  pri 
vate  appeal  case,  Clark  r.  Tousey.1 

In  1742  Samuel  Clark  appealed  to  the  King  in  council  for 
the  recovery  of  certain  lands  in  Connecticut  which  he  de 
manded  as  heir  at  law  according  to  the  English  laws  of  descent, 
but  which  had  been  settled  upon  Thomas  Tousey,  of  Milford, 
according  to  the  ancient  laws  and  customs  of  the  colony. 
Tousey  stated  to  the  general  assembly  that  he  was  obliged  to 
go  to  England  to  defend  this  suit,  and,  realizing  that  it  involved 
the  old  question  at  issue  between  the  colony  and  the  home 
Government,  the  assembly  voted  that  the  sum  of  £500  should 
be  loaned  to  Mr.  Tousey  to  aid  him  in  the  suit.  In  October 
following,  the  colonial  agent,  Eliakim  Palmer,  was  instructed 
to  employ  solicitors  in  Tousey's  defense  and  to  assist  him 

1  Connecticut  Historical  Society  Collections,  IV,  p.  94,  note. 
H.  Mis.  91 21 


322  AMERICAN    HISTORICAL    ASSOCIATION. 

further  in  anyway  possible.  These  combined  efforts  to  secure 
a  reversal  of  the  privy  council's  decision  in  the  case  of  Win- 
throp  v.  Lechmere  were  finally  successful.  Clark's  appeal  was 
dismissed  by  an  order  in  council,  July  18,  1745.  At  last  the 
validity  of  the  act  of  .1699  was  established. 

It  is  now  time  to  turn  our  attention  to  appeals  from  lihode 
Island.  Inasmuch  as  colonial  courts  were  very  closely  asso 
ciated  with  the  history  of  the  practice  of  appealing  to  England, 
a  few  words  must  be  said  in  regard  to  the  Ehode  Island  judi 
ciary.  After  even  a  cursory  glance  at  the  colony's  judicial 
system,  we  shall  obtain  a  much  clearer  understanding  of  Eng 
lish  regulations,  colonial  legislation,  and  concrete  cases. 

The  first  settlers  of  Ehode  Island  established  four  separate 
communities,  Providence  in  1636,  Portsmouth  in  1638,  Newport 
in  1639,  and  Warwick  in  1642.1  Prior  to  1647  each  of  these 
communities,  with  the  exception  of  Warwick,  had  its  own  form 
of  government  and  consequently  its  own  judiciary.  The  War 
wick  settlers  believed  that  they  had  no  right  to  create  a  gov 
ernment  for  themselves,  and  remained,  therefore,  without  a 
judiciary. 

In  1647,  however,  there  was  introduced  a  new  judicial  sys 
tem,  through  the  union  of  the  four  towns  under  the  first  charter 
and  the  enactment  of  a  code.  The  chief  officers  of  government 
under  the  charter  of  1647  were  a  president  and  four  assistants, 
who  were  chosen  from  among  the  freemen  by  their  several 
towns,  one  assistant  from  each  town.  To  these  officers  was 
also  committed  the  duty  of  holding  twice  each  year  the  general 
court  of  trials,  which  was  the  supreme  court  in  the  colony  for 
the  administration  of  justice.  The  general  court  had  original 
jurisdiction  in  all  important  cases  and  in  all  matters  of  judi 
cial  cognizance  not  referred  to  town  or  local  courts,  and,  at 
least  after  1650,  exercised  an  appellate  or  revisory  jurisdiction 
over  these  latter  tribunals.2  This  system,  however,  was  not 
satisfactory  to  the  colonists,  for  "  in  1651  it  was  enacted  that 


I0n  the  colonial  judiciary,  see  Durfee's  Gleanings  from  the  Judicial  His 
tory  of  Rhode  Island. 

2  Town  councils  were  from  the  first  courts  of  probate.  In  1663  the  pro 
bate  jurisdiction  was  fully  committed  to  them,  with  an  appeal  to  the  gov 
ernor  and  council  as  supreme  ordinary  or  judge  of  probate.  By  an  act  of 
1718  (Public  Laws  of  Rhode  Island,  digest  of  1719,  p.  95)  appeals  from  the 
judgments  of  town  councils  were  heard  by  the  governor  and  council,  where 
a  "  final  judgment "  was  rendered. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  323 

all  causes,  except  prosecutions  for  certain  crimes  of  the  highest 
grade,  should  be  tried  in  the  first  place  in  the  town  courts,  the 
general  court  being  thus  converted  into  a  court  of  appeal  or 
review.  The  system  as  thus  modified  remained  in  force,  except 
as  it  was  interrupted  by  Coddington's  usurpation,  until  1663, 
when  the  royal  charter  of  Charles  II  was  received." 

The  charter  of  1663  did  not  create  judicial  tribunals,  but 
authorized  the  general  assembly l  to  "  erect  such  courts  of  jus 
tice,  for  determining  all  acts  within  the  colony,  as  they  should 
think  fit."  Accordingly,  the  general  assembly  at  its  first  ses 
sion  under  this  new  charter  conferred  magisterial  functions 
upon  certain  of  the  legislative  officers,  by  providing  that  either 
the  governor  or  the  deputy  governor,  with  at  least  six  assist 
ants,  should  hold  the  general  court  of  trials  at  Newport  every 
year  in  May  and  October.2  Durfee  says  that  "  the  act  consti 
tuting  the  superior  court,"  or  the  court  we  have  just  referred 
to,  "  did  not  define  its  jurisdiction  j  but,  as  the  charter  con 
tinued  iu.  force  all  statutes  not  repugnant  to  the  laws  of  the 
realm,  it  may  have  been  understood  that  the  old  system  sur 
vived  and  that  the  court,  as  newly  officered,  was  a  continua 
tion  of  the  former  court  of  the  same  name.  This,  however,  is 
not  clear.  *  *  *  The  old  court  became,  as  we  have  seen, 
mainly  a  court  of  appeals,  whereas  the  new  court  appears  to 
have  exercised  more  original  jurisdiction.  *  *  *  The  reader, 
therefore,  who  tries  to  form  a  clear  conception  of  the  system 
will  probably  not  succeed.  He  will  not  be  able  to  determine 
with  certainty  the  jurisdiction  of  the  several  courts;  nor  their 
relations  to  each  other;  nor  by  what  procedure  causes  were 
carried  from  the  lower  to  the  higher,  and  correction  was  trans 
mitted  from  the  higher  to  the  lower  tribunals." 3 

The  general  assembly,  at  the  May  session,  1666,  passed  an 
act4  for  the  calling  of  special  courts,  which  is  of  peculiar 

1  Composed  of  governor,  deputy  governor,  ten  assistants  and  a  body  of 
deputies. 

-  The  terms  were  subsequently  changed  to  March  and  September,  as  it 
was  found  that  the  sessions  of  the  court  interfered  with  the  sessions  of 
the  general  assembly. 

3  In  regard  to  the  jurisdiction  and  procedure  of  the  superior  court,  or 
more  properly  the  general  court  of  trials,  see  further  the  "  Report  of  the 
Earl  of  Bellmout  on  the  irregularities  of  Rhode  Island,"  Boston,  Novem 
ber  27,  1699,  in  Rhode  Island  Colonial  Records,  III,  p.  385,  and  Governor 
Cranston's  letter  to  the  Board  of  Trade,  December  5,  1708,  in  Rhode  Island 
Colonial  Records,  IV,  p.  56. 

4  Public  Laws  of  Rhode  Island,  Digest  of  1719,  p.  17. 


324  AMERICAN    HISTORICAL    ASSOCIATION. 

interest  as  being  the  first  legislative  enactment  that  we  have 
been  able  to  find  containing  reference  to  privy  council  appeals 
from  courts  of  the  colony.  This  act  of  1666  recites  that  whereas 
it  often  happens  that  merchants,  sailors  and  other  persons  who 
are  not  permanent  inhabitants  of  Rhode  Island,  when  they 
come  to  the  colony  to  trade  and  transact  their  business  affairs, 
either  sue  or  are  sued  in  personal  actions 5  that  whereas  injus 
tice  is  done  to  these  persons  by  reason  of  their  being  detained, 
often  for  a  long  time,  until  the  usual  courts  of  trial  shall  deter 
mine  such  causes;  and  that  whereas,  also,  this  long  period  of 
waiting  is  occasioned  many  times  through  malice  of  the  other 
parties,  who  desire  to  hinder  them  from  proceeding  on  their 
voyage;  the  governor  and  deputy  governor  are  in  such  cases 
to  call  special  courts,  which  shall  consist  of  the  governor,  and 
in  his  absence  of  the  deputy  governor,  and  three  or  more 
assistants  of  the  colony.  The  decisions  of  such  special  courts 
shall  be  final,  "saving  only  to  the  party  aggrieved  the  liberty 
of  appealing  to  His  Majesty  in  council  in  England,  as  in  other 
cases  is  usually  allowed." 

During  the  period  of  Governor  Andros's  administration 
of  New  England  affairs,  the  judicial  system  of  Ehode  Island 
was  modified  to  meet  the  altered  political  conditions.  As  in 
the  case  of  the  other  colonies  constituting  the  colony  of  New 
England,  appeals  from  the  courts  of  Rhode  Island  lay,  in 
civil  causes,  to  the  governor  and  council,  and  from  that  tri 
bunal  to  the  King  in  council.1  On  the  resumption  of  the  char 
ter  in  1690,  the  judicial  system  in  vogue  previous  to  1686  was 
reestablished.2 

An  important  change  in  the  judicial  system  occurred  in  1729, 
when  the  colony  was  divided  into  three  counties,  Newport, 
Providence,  and  King's,  and  a  criminal  and  a  civil  court  estab 
lished  for  each  county.  The  criminal  courts  were  designated 
as  courts  of  general  sessions  of  the  peace,  and  consisted  of 
the  justices  of  the  peace  in  each  county,  any  five  of  them  being 
a  quorum.  These  courts  had  "  original  jurisdiction,  subject  to 
appeal  to  the  higher  court,  of  all  crimes  not  capital,  and  appel 
late  jurisdiction  of  all  such  petty  offenses  as  were  triable  by 
justices  of  the  peace."  The  civil  courts  were  denominated 
courts  of  common  pleas,  and  were  each  held  by  "four  judi- 

1  See  Governor  Andros's  commission  of  1686. 

2  Act  of  May,  1690.     See  Rhode  Island  Colonial  Records,  III,  p.  268. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  325 

cious  and  skillful  persons,"  chosen  by  the  general  assembly 
from  the  counties  in  which  they  were  to  act.  The  jurisdiction 
of  the  courts  extended,  subject  to  appeal  to  the  higher  court, 
to  "  all  civil  actions  arising  or  happening  within  such  county 
triable  at  common  law,  of  whatever  nature,  kind,  or  quality 
soever."  The  higher  court  in  the  colony  now  became  known  as 
"  the  superior  court  of  judicature,  court  of  assize,  a  ad  general 
gaol  delivery,"  and  its  jurisdiction  in  civil,  and  for  the  most 
part  in  criminal,  matters  became  purely  appellate,  although 
with  as  full  powers  in  this  respect  as  the  court  of  common 
pleas,  King's  bench,  or  exchequer  in  England.1  The  act  of 
1729,2  establishing  the  system  just  described,  provides  that— 

The  Judgment  and  Determination  of  said  Superior  Court  shall  be  a 
final  Issue  and  Determination  of  all  causes  there  Tryed,  excepting  only, 
and  saving  an  Appeal  to  the  General  Assembly  in  all  Personal  Actions,  and. 
from  thence  to  the  King  in  Council,  where  the  Matter  in  controversy  will 
admit  thereof,  and  an  Appeal  directly  to  the  King  in  Council  in  all  Causes 
not  Cognizable  before  said  Assembly,  that  by  Law  will  admit  the  same. 

Judge  Durfee  is  of  the  opinion  that  "the  system  as  thus 
revised  was  complete,  clearly  denned,  and  doubtless  well 
suited  to  the  need  of  the  colony,"  except  in  the  two  particu 
lars,  that  the  superior  court  continued  to  be  held  by  the  gov 
ernor,  or  deputy  governor,  and  the  assistants,  and  that  it  con 
tinued  to  be  held  exclusively  at  Newport. 

The  disadvantages  incident  to  these  particulars  finally  occa 
sioned  a  radical  change  in  the  judicial  system  through  the 
passage  of  the  act  of  February,  1747.3  In  place  of  the  gov 
ernor,  or  deputy  governor,  and  ten  assistants,  there  were  to 
be  five  judges,  a  chief  and  four  associates,  any  three  being 
a  quorum.  They  were  to  be  chosen  annually  by  the  general 
assembly,  and  commissioned  by  the  governor,  to  hold  the 
court.  Provision  was  also  made  for  two  sessions  a  year  in 
every  county  throughout  the  colony.  The  act  concludes  by 
stating  that  this  court  "is  hereby  empowered  to  make  up 
judgment  in  all  such  continued  actions  as  aforesaid,  and  award 
execution  thereon,  excepting  where  there  shall  be  an  appeal  to 
His  Majesty  in  council,  agreeable  to  law." 

Our  sketch  of  the  Ehode  Island  judiciary  would  be  incom 
plete  without  some  account  of  the  exercise  of  judicial  functions 


1  Douglass's  Summary. 

2  Public  Laws  of  Rhode  Island,  Digest  of  1730,  p.  192. 

3  Public  Laws  of  Rhode  Island,  Digest  of  1752,  p.  27. 


326  AMERICAN    HISTORICAL    ASSOCIATION. 

by  the  general  assembly;  for  from  the  very  first  the  assembly 
appears  to  have  regarded  itself  a  judicial  tribunal  as  well  as 
a  legislative  body,  and  during  practically  all  of  the  colonial 
period  exercised  an  appellate  jurisdiction  over  colonial  courts, 
granting  or  refusing  also  appeals  to  the  King  in  council. 

Neither  the  charter  of  1047  nor  that  of  16G3  conferred  upon 
the  assembly  the  large  judicial  powers  which  it  assumed ;  the 
charter  of  1663,  as  already  noted,  merely  directing  that  the 
assembly  was  "to  erect  such  courts  of  justice  for  determining 
all  acts  within  the  colony,  as  they  should  think  fit."  In  1647, 
under  the  first  charter,  the  assembly  passed  an  act '  declaring 
that  "in  case  any  man  sues  for  justice  against  an  officer  or 
other,  and  he  can  not  be  heard,  or  is  heard  and  can  not  be  righted 
by  any  law  extant  among  us,  then  shall  the  party  grieved  peti 
tion  to  the  General  or  lawmaking  Assembly,  and  shall  be 
relieved."  That  the  assembly,  under  the  charter  of  1603,  did 
not  assume  these  powers  without  some  apprehension  is  evi 
dent  from  the  action  of  that  body  itself;  for  in  1678  it  refused 
to  interfere  with  a  decision  of  the  general  court  of  trials  in  the 
case  of  Forster  v.  Sanford,  affirming  that  "  this  Assembly  con 
ceive  that  it  doth  not  properly  belong  to  them  or  anywise 
within  their  recognizance  to  judge  or  to  reverse  any  sentence 
or  judgment  passed  by  the  General  Court  of  Tryalls,  accord 
ing  to  law,  except  capitall  or  criminal!  cases,  or  mulct,  or 
fines."2  Yet,  notwithstanding  this  plain  declaration  as  to  its 
lack  of  judicial  power,  the  assembly  two  years  later,  or  in 
1680,  greatly  extended  its  own  appellate  jurisdiction  by  grant 
ing  the  right  of  appeal  to  any  party  in  any  "  actional  case7' 
who  should  be  aggrieved  by  a  decision  of  the  general  court. 
In  1699  the  Earl  of  Bellomont  was  instructed  by  the  lords  of 
trade  and  plantations  to  inquire  concerning  the  conduct  of 
Rhode  Island  in  certain  matters.  In  his  report  Bellomont 
declares  that  "the  General  Assembly  assume  a  judicial  power 
of  hearing,  trying  and  determining  civil  cases,  removing  them 
out  of  the  ordinary  courts  of  justice,  and  way  of  trial  accord 
ing  to  the  course  of  the  common  law,  alter  and  reverse  ver 
dicts  and  judgments — the  charter  committing  no  judicial 
power  or  authority  unto  them."  Eegardless  of  this  report,  as 
well  as  of  the  sentiment  of  the  authorities  in  England,  which  was 

1  Proceedings  of  the  First  General  Assembly  and  the  Code  of  Laws  of 
1647,  p.  61. 

2  Rhode  Island  Colonial  Records,  III,  p.  19. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  327 

antagonistic  to  the  policy  pursued  by  the  legislative  branch  of 
the  Khode  Island  government,  the  assembly  enacted,  in  1705, 
that  "  the  General  Assembly,  at  all  times  convened  in  general 
assembly,  shall  be  a  court  of  chancery,  as  formerly  it  hath 
been,  until  such  time  as  a  more  proper  court  may  be  conven 
iently  erected  and  settled."  The  privy  council  declaring  in 
1710  the  decision  of  the  assembly  in  the  appeal  case  of  Bren- 
ton  v.  Eemington  null  and  void  for  want  of  jurisdiction,  the 
assembly  itself  finally  came  to  the  conclusion  that  it  had  no 
charter  power  to  constitute  itself  a  court  of  review,  affirming 
that  it  could  not  "  find  any  precedent  that  the  legislators  or 
parliament  of  England,  after  they  had  passed  an  act  or  law, 
took  upon  themselves  the  executive  power  or  authority  of  con 
stituting  themselves  a  court  of  chancery  or  any  other  court  of 
judicature."  In  February,  1712,  therefore,  the  assembly  erected 
a  court  of  chancery  to  hear  appeals,  though,  strangely  enough, 
still  continuing  to  exercise  its  former  appellate  jurisdiction  by 
means  of  petition.  In  1741,  however,  it  established  a  court  of 
equity  to  hear  and  determine  all  appeals  in  personal  actions 
from  the  judgments  of  the  superior  court.  The  act ]  consti 
tuting  this  court  declares  that  "  the  judgment  and  determi 
nation  of  said  court  shall  be  final,  saving  an  appeal  to  His 
Majesty  in  council  in  those  cases  wherein  the  law  hath  already 
provided."  But  the  act  of  February,  1743,2  abolished  this 
court,  and  provided  for  an  action  of  review 3  in  the  superior 
court,  declaring,  furthermore,  "that  execution  shall  not  be 
stayed  or  suspended  by  reason  of  any  such  action  of  review; 
and  that  any  judgment  given  in  any  action  of  review  shall  no 
ways  hinder  the  party  aggrieved  thereat  to  appeal  to  His 
Majesty  in  council  in  all  cases  where  the  law  of  the  colony 
permits  and  allows  the  same."  But  it  is  probable  that  after  the 
passage  of  this  act  of  1743,  and  even  after  the  establishment 
of  the  new  superior  court  in  1747,  the  general  assembly  exer 
cised  appellate  powers;  for  in  the  case  of  Pearce  v.  Eice,  1752, 

1  Act  of  May,  1741.     See  Rhode  Island  Colonial  Records,  V,  p.  22. 

2  Rhode  Island  Colonial  Records,  V,  p.  76;  Public  Laws  of  Rhode  Island, 
Digest  of  1745,  p,  282. 

3  An  act  of  1732  provided  for  review  in  real  actions  relating  to  titles  of 
land,  and  stipulated  that  "  Judgment  on  Review  shall  in  no  ways  hinder 
the  Party  Aggrieved  with  such   Judgment  to  appeal  to  His  Majesty  in 
Council  in  Great  Britain  in  all  Cases  where  the  Law  of  the  Colony  permits 
and  allows  the  same."    (See  Public  Laws  of  Rhode  Island,  Digest  of  1730, 
p.  247.) 


328  AMERICAN    HISTORICAL    ASSOCIATION. 

the  assembly  allowed  an  appeal  to  England  from  the  superior 
court,  and  directed  that  tribunal  accordingly. 

In  hearing  and  determining  appeals  the  two  houses  of  the 
assembly  resolved  themselves  into  a  grand  committee  (joint 
session),1  each  case  being  tried  on  all  the  issues,  the  assembly 
itself  acting  as. triers  both  of  law  and  fact.2  At  the  conclu 
sion  of  the  trial  the  vote  of  this  grand  committee  decided 
whether  the  decision  of  the  court  below  should  be  affirmed, 
reversed,  or  "  chancerized "  by  mitigating  the  damages.  If 
either  party  was  dissatisfied  with  the  decision  of  the  assembly 
and  wished  a  further  trial  in  England,  he  at  once,  usually 
through  his  attorney,  moved  for  an  appeal  to  the  King  in 
council.  The  assembly  thereupon  decided  whether  such  an 
appeal  should  be  allowed  or  refused.  When  appeals  were 
allowed,  the  assembly  usually  stipulated  that  the  law  in  such 
cases  must  be  complied  with.  In  some  appeal  cases  tried 
before  the  assembly  the  damages  were  chancerized  to  a  sum 
below  that  required  for  an  appeal  to  England;  and  on  request 
for  such  appeal  from  decisions  of  the  general  assembly  the 
appellants  were  usually  refused.  In  one  case  of  which  we  have 
record  damages  were  chancerized  by  the  assembly,  from  £500 
to  £15,  and  an  appeal  to  England  was  then  refused  because 
the  sum  involved  was  less  than  £300.3 

As  already  indicated  the  assembly  not  only  allowed  appeals 
from  its  own  decisions,  but  from  those  of  other  colonial  courts. 
In  February,  1712,  a  petition  was  presented  to  the  assembly  by 
Captain  Samuel  Greene,  attorney  to  John  Knight,  requesting 
that  an  appeal  to  England  might  be  granted  the  said  Knight 
from  a  decision  of  the  court  of  trials  in  his  suit  with  John 
Babcock  concerning  lauds  in  the  Narragansett  country;  and 
the  assembly  thereupon  "enacted"  that  Greene  should  be 
allowed  so  to  appeal,  if  he  complied  with  the  law  in  such 
cases.4  In  1752  it  granted  an  appeal  from  the  superior  court 
in  a  case  to  which  we  have  just  referred.  In  June  of  that  year 
it  was — 

Voted  and  Resolved,  That  the  Superior  Court  of  Judicature  of  this  Col 
ony,  be,  and  they  are  hereby  directed  to  permit  John  Pearce  and  Thomas 
Pearce  to  appeal  to  His  Majesty  in  Council,  from  a  Judgment  obtained 


1  Rhode  Island  Colonial  Records,  IV,  p.  157 ;  V,  p.  80. 

2Durfee's  Gleanings  from  the  Judicial  History  of  Rhode  Island,  p.  37. 

3  Rhode  Island  Colonial  Records,  IV,  pp.  268,269. 

<Ib.,  IV,  p.  138. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  329 

against  them  by  John  Rice,  agreeable  to  the  Orders  of  his  said  Majesty  in 
Council,  now  before  this  Assembly:  Any  Law  of  the  Colony  to  the  con 
trary  hereof,  notwithstanding.  And  it  is  farther  Voted  and  Resolved,  That 
the  Superior  Court  meet  in  the  County  of  Kent  on  Tuesday  the  sixteenth 
Day  of  this  Instant  June,  for  the  Purpose  aforesaid:  And  that  the  said 
John  Rice  be  notified  thereof,  and  served  with  a  Copy  of  this  Act,  together 
with  a  Copy  of  said  Order  of  His  Majesty  in  Council.1 

The  assembly  also  exercised  an  authority  over  colonial  courts 
in  the  matter  of  carrying  into  effect  the  decisions  of  the  King 
in  council  in  cases  appealed  from  the  colony.  In  1767  George 
Koine,  in  behalf  of  William  Stead,  of  London,  presenting  to 
the  assembly  two  decrees  of  the  King  in  council  deciding  in 
favor  of  the  said  Stead  in  his  suit  against  Isaac  and  Naphtali 
Hart  and  Isaac  Elizer,  prayed  that  the  assembly,  to  whom  the 
decrees  were  directed,  would  instruct  the  superior  court  to 
order  them  put  in  execution  at  a  special  meeting  of  the  said 
court,  to  be  held  the  following  Tuesday.  This  the  assembly 
refused  to  do,  on  the  ground  that  such  proceedings  in  the 
superior  court  would  be  out  of  the  regular  term  of  that  tribu 
nal.  Later  in  the  same  session  of  the  assembly,  however,  it 
was  voted  and  resolved  that  "in  conformity  to  the  rule  and 
practice  of  this  colony  in  such  cases,  that  the  superior  court 
be,  and  hereby  is,  directed  at  the  next  term  to  take  the  subject- 
matter  of  the  said  decrees  into  their  consideration,  and  order 
them  immediately  into  execution,  upon  their  being  presented 
to  said  court." 2 

Ehode  Island  legislation  regulating  appeals  begins  with  the 
act  of  1706,3  which  provides  that — 

On  all  appeals  by  any  person  in  said  Collony  to  England,  to  her  Majesty 
in  Councill,  bond  for  the  prosecuting  all  said  appeals  shall  be  given  to 
the  Governor  and  Councill,  to  prosecute  said  appeals  according  to  the 
time  given  and  agreed  on  by  the  Governor  and  Councill,  for  all  persons 
that  shall  have  appeal  allowed  them;  and  the  appelee  shall  be  cited  to 
appear  in  England  before  her  Majesty  and  Councill  to  answer. 

Although  in  1689  governors  were  instructed  not  to  allow 
an  appeal  to  the  Crown  unless  the  matter  in  controversy 
amounted  to  £500,  many  cases  of  "very  small  moment,"  in 
which  persons  of  little  means  were  compelled  to  lose  their 
rights  through  inability  to  defend  them,  were  appealed  to  the 


1  Rhode  Island  Acts,  Resolves,  and  Reports,  May,  1750-March,  1755,  p.  24. 

2  Rhode  Island  Acts,  Resolves,  and  Reports,  May,  1765— October,  1770, 
p.  44. 

3  Rhode  Island  Colonial  Records,  III,  p.  562. 


330  AMERICAN    HISTORICAL    ASSOCIATION. 

King  iii  council  from  the  colony.1  At  the  October  session  of 
the  assembly  in  1718,  therefore,  the  recorder  was  directed  to 
draw  up  an  act  regulating  appeals;  and  at  an  adjourned  ses 
sion  in  June,  1719,  it  was  enacted2  that  no  person  or  persons 
be  allowed  to  appeal  to  England,  unless  the  matter  or  thing  in 
controversy  amount  to  three  hundred  pounds,  current  money 
of  the  colony,  to  be  valued  by  the  court  where  the  appeal  shall 
be  prayed. 

The  two  acts  just  cited  formed  the  colonial  legislation  in 
regard  to  privy  council  appeals  until  1746.  In  this  year  the 
act  of  1711)  was  repealed,  as  it  was  found  that  under  its  pro 
visions  appeals  were  still  carried  to  England  in  matters  of 
too  small  value;  and  it  was  enacted3  that  for  the  future  any 
person  or  persons  aggrieved  by  a  decision  of  the  superior 
court  should  have  the  liberty  of  appealing  to  the  King  in 
council  where  the  matter  or  thing  or  controversy  was  of  the 
value  of  £150  (sterling),  and  in  no  other  case  whatsoever,  the 
superior  court  where  the  appeal  was  prayed  being  empowered 
to  ascertain  the  value  of  said  appeal.  In  1747,  or  one  year 
after  the  passage  of  this  act,  Parliament  resolved  to  reimburse 
the  colonies  for  their  outlay  in  the  expedition  that  resulted 
in  the  capture  of  Louisbourg.  Rhode  Island  received  at  that 
time  £7,800  sterling,  with  which  the  committee  in  charge  of 
the  matter  redeemed  £88.725  of  the  colonial  bills  of  credit.4 
We  thus  see  that  £1  sterling  was  equal  to  about  eleven  pounds 
in  current  money  of  the  colony.  About  the  time  of  the  passage 
of  this  act,  therefore,  £150  sterling  were  equal  to  about 
£1,650  in  current  money  of  the  colony;  and  by  changing  the 
sum  for  which  an  appeal  should  be  allowed  from  three  hundred 
pounds  current  money  of  the  colony,  under  the  act  of  1719, 
to  £150  sterling,  the  assembly  increased  the  legal  require 
ment  about  five  and  one-half  times. 

Four  years  after  the  enactment  of  the  statute  of  1746,  or  at 
the  October  session  of  the  assembly  in  1750,  a  supplementary 
act  was  passed,  according  to  the  terms  of  which — 

1  Preamble  of  act  of  1719. 

2  Public  Laws  of  Rhode  Island,  Digest  of  1730,  p.  106. 

3  Public   Laws   of  Rhode   Island,   Digest   of   1752,  p.   30.     Appeals    to 
England  caused  the  printing  of  this  Digest  of  1752.     (See  Rhode  Island 
Colonial  Records,  V,  p.  355). 

4  See  Rhode  Island  Historical  Tracts,  No.  8,  pp.  63-67.     This  tract,  by 
Judge  Potter  and  Mr.  S.   S.   Rider,  gives  an  account  of  Rhode  Island 
paper  money  from  1710  to  1786. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  331 

No  defendant  in  any  suit  of  law  in  this  colony,  the  foundation  whereof, 
being  a  bond  conditioned  for  the  payment  of  money  only,  shall  have  leave 
to  appeal  from  the  judgment  of  such  court,  where  such  action  shall  be 
tried,  to  His  Majesty  in  council;  but  that  the  last  judgment  of  the  supe 
rior  court  of  judicature,  in  this  colony,  as  trials  now  stand,  regulated  by 
the  laws  of  this  colony,  shall  in  all  such  cases  be  final.  And  furthermore, 
that  in  all  appeals  to  His  Majesty  in  council,  from  this  colony,  if  the  appel 
lant  doth  not  obtain  a  reversal  of  the  judgment  appealed  from,  or  fails  in 
prosecuting  such  appeal,  the  appellee,  in  such  case,  may,  by  action  of  the 
case,  recover  all  just  and  reasonable  costs  and  damages. 

Perhaps  the  most  comprehensive  and  important  Rhode  Island 
legislation  in  regard  to  appeals  is  contained  in  the  act  of  1764.1 
It  appears  that  even  after  the  passage  of  the  act  of  1746  cases 
of  small  value  were  appealed  to  England,  and  in  order  to  pre 
vent  such  appeals  in  the  future  the  assembly  passed  this  act 
of  1764.  It  recites  that  no  person  shall  be  allowed  to  appeal 
from  the  decision  of  the  superior  court  to  His  Majesty  in  council 
unless  the  matter  or  thing  in  question  be  of  the  value  of  £200, 
lawful  money,  to  be  valued  by  the  court  where  the  appeal  shall 
be  prayed;  and  that  whoever  shall  thus  appeal  to  the  King  in 
council  shall  give  bond  to  the  superior  court  or  to  the  clerk 
thereof,  before  the  rising  of  the  same,  with  a  good  surety  or 
sureties,  to  be  approved  by  the  said  court,  in  the  sum  of  £250, 
lawful  money,  for  the  effective  prosecution  of  the  appeal,  or, 
in  default  thereof,  to  pay  to  the  appellee  all  costs  and  damages 
which  he,  the  aforesaid  appellee,  shall  sustain  by  reason  of 
such  appeal  not  being  prosecuted  with  effect.  The  act  further 
recites  that,  whereas  by  former  laws  of  the  colony  regulating- 
appeals  to  the  King  in  council  bond  was  not  required  of  the 
appellee  to  secure  to  the  appellant  his  costs  upon  a  reversal  of 
the  colonial  decision,  the  appellant  might,  notwithstanding 
such  reversal  and  His  Majesty's  order  in  council,  be  defeated 
of  his  rights,  in  that  the  appellee  may,  before  the  final  deter 
mination  of  the  cause,  be  rendered  insolvent  or  be  removed 
out  of  the  colony,  so  that  neither  his  body  nor  estate  can  be 
found.  To  remedy  this  evil  it  is  required  that  the  appellee, 
before  he  shall  be  permitted  to  receive  a  copy  of  the  case  from 
the  clerk  of  the  superior  court,  shall  give  bond  in  the  said 
clerk's  office  in  the  sum  of  £250,  lawful  money,  with  a  good 
surety  or  sureties,  to  pay  unto  the  appellant  all  such  costs  and 
charges  as  he  shall  sustain  if  the  decision  of  the  colonial  court 
be  reversed  by  the  King  in  council.  The  statute  concludes  by 


Public  Laws  of  Rhode  Island,  Digest  of  1767,  p.  10. 


332  AMERICAN    HISTORICAL    ASSOCIATION. 

stating  that  no  defendant,  in  any  suit  whose  foundation  is  a  a 
bond  conditioned  for  the  payment  of  money  only,"  shall  have 
the  liberty  of  appealing  from  the  colonial  court  to  the  King  in 
council,  but  that  the  last  judgment  of  the  superior  court  shall 
be  final;  and  by  providing  that  an  appeal  shall  not  stay  or  sus 
pend  execution  in  favor  of  the  party  obtaining  a  final  decision 
in  the  colony,  provided  such  party,  at  the  time  of  taking  out 
his  execution,  give  bond  into  the  office  of  the  court,  with  two 
good  sureties,  to  refund  whatever  shall  be  lawfully  levied  and 
taken  in  consequence  of  such  execution. 

It  will  be  observed  that  this  act  designates  £200,  lawful 
money,  as  the  sum  below  which  no  appeal  is  to  be  allowed.  In 
1704  gold  and  silver  coins  were  the  only  lawful  money  in  Ehode 
Island,1  and  the  colonial  standard  of  value  was  practically  the 
same  as  that  of  the  home  country,  a  pound  of  English  money 
having  a  slightly  greater  purchasing  power  than  the  colonial 
pound.  By  increasing  the  sum  below  which  no  appeal  was  to 
be  allowed  from  £150  sterling,  under  the  statute  of  174G,  to 
£200,  lawful  money,  under  this  act  of  1764,  the  assembly  in 
reality  raised  the  legal  requirement  something  less  than  £50 
sterling. 

A  statute  of  1768 2  further  regulates  appeals  by  providing 
that  whenever  an  appeal  is  prayed  for  and  granted  from  the 
decision  of  the  superior  court,  it  shall  be  lawful  for  the  judges 
of  the  said  court,  when  the  appellant  is  absent  at  the  time  the 
appeal  is  allowed,  to  accept  bond  of  any  other  person,  appear 
ing  in  behalf  of  such  appellant,  whom  the  said  judges  shall 
regard  of  sufficient  estate  in  the  colony,  with  such  other  sure 
ties  as  the  court  shall  deem  sufficient,  in  the  same  manner  as 
if  the  party  appealing  was  present  himself  in  court  to  give 
bond.  The  act  of  1769 3  stipulates  that  whenever  an  appeal 
to  the  King  in  council  is  allowed,  and  bond  given  by  the  appel 
lant  for  prosecuting  the  same  according  to  law,  there  shall  be 
no  review  of  the  cause  in  the  colony;  and  furthermore,  that 
if  such  writ  of  review  shall  be  taken  out,  the  court  to  which 
the  same  is  brought  shall  "ex-officio"  bar  it  and  award  the 
defendant  his  costs.  According  to  the  law  of  1771 4  no  appeals 
from  the  superior  court  were  to  be  allowed  unless  the  matter 

1  See  Rhode  Island  Historical  Tracts,  No.  8,  pp.  97-100. 

2  Public  Laws  of  Rhode  Island,  Digest  of  1772,  p.  8. 
3Ib.,  p.  17. 

4Ib.,  p.  38. 


APPEALS  FROM  COLONIAL  COURTS HALELTINE.  333 

in  controversy  amount  to  £300,  lawful  money,  to  be  valued 
by  the  court  where  the  appeal  was  prayed. 

In  June,  1775,  the  "Act  for  regulating  appeals  to  His 
Majesty  in  council,  in  Great  Britain, "was  repealed;1  and  in 
May,  1776,  it  was  enacted  that  the  courts  of  law  of  Rhode 
Island  be  no  longer  entitled  or  considered  as  the  King's  courts.2 
With  these  two  acts  ends  the  legislation  of  the  Rhode  Island 
assembly  in  regard  to  appeals  to  England,  the  acts  them 
selves  abrogating  the  appellate  jurisdiction  of  the  King  in 
council  over  the  courts  of  the  colony. 

On  the  accession  of  James  II  to  the  throne  of  England  in 
1685,  the  inhabitants  of  Rhode  Island  immediately  trans 
mitted  an  address  to  the  King,  in  which  they  acknowledged 
themselves  his  loyal  subjects,  professed  obedience  to  his  power, 
and  begged  protection  to  their  chartered  rights.  Even  this 
evident  humility,  however,  could  not  save  the  colony  from  the 
plan  of  reform  for  Xew  England ;  and  in  the  same  year  as  the 
transmission  of  this  address  Edward  Randolph  exhibited  seven 
articles  of  high  misdemeanor  against  the  governor  and  com 
pany  of  Rhode  Island  to  the  lords  of  the  privy  council's  com 
mittee  on  plantation  affairs.  These  charges  were  referred  in 
July,  1685,  to  the  attorney-general,  with  orders  to  issue  a  quo 
warranto  against  the  Rhode  Island  patent.  But  the  colony 
refused  to  stand  suit  with  the  King  and  gave  up  its  charter, 
Sir  Edmund  Andros  being  appointed  soon  after  to  govern  its 
affairs. 

In  the  first  of  these  seven  articles  of  high  misdemeanor 
Randolph  charged  that  the  governor  and  company  of  Rhode 
Island  denied  appeals  to  His  Majesty;  and  in  Sir  Edmund 
Audros's  account  of  his  administration  and  imprisonment 
to  the  council's  committee  on  trade  and  plantations3  it  was 
asserted  that  the  colonies  of  New  England,  and  among  them 
Rhode  Island,  neither  admitted  English  laws  to  be  pleaded 
nor  allowed  appeals  to  the  King  in  council.4  On  March  26, 
1705,  the  privy  council  itself  preferred  several  charges  against 
Rhode  Island,  the  eighth  article  being  that  the  colony  denied 


1  Rhode  Island  Colonial  Records,  VII,  p.  355. 

-Rhode  Island  Acts,  Resolves,  and  Reports,  May,  1776 — April,  1777,  p.  22. 

3  This  committee  was  variously  known  as  the  committee  011  plantation 
affairs,  the  committee  on  trade   and  plantations,  and  the  committee  on 
hearing  appeals  from  the  plantations. 

4  Rhode  Island  Colonial  Records,  III,  p.  284. 


334  AMERICAN    HISTORICAL    ASSOCIATION. 

appeals.  Governor  Cranston,  in  a  letter  to  the  board  of  trade, 
May  27, 1699,  asserted  that  Edward  Randolph,  who  was  in  the 
employ  of  the  royal  customs  commissioners,  publicly  declared 
that  he  would  be  the  means  of  depriving  the  colony  of  its  priv 
ileges  ;  "and  we  know,"  the  governor  concluded,  "he  picked 
up  several  false  reports  against  us."1  In  reply  to  the  privy 
council's  charges,  the  colonial  officials  declared,  August  28, 
1705,  that  they  had  not  refused  to  allow  appeals,  when  duly 
applied  for  and  the  value  of  the  matter  in  controversy  re 
quired  the  same.2  It  was  further  averred  that,  for  want  of 
instructions  in  the  case,  they  had  granted  an  appeal  for  the 
value  of  £20,  which,  "with,  humble  submission,"  they  con 
ceived  to  be  "frivolous  and  vexatious." 

Notwithstanding  these  denials  by  the  colonial  government, 
Governor  Dudley  wrote  the  board  of  trade  on  November  2, 
1705,  with  charges  against  Ehode  Island,  the  seventh  article 
being  that  the  colony  had  refused  to  allow  appeals  to  Her 
Majesty  in  council,  and  gave  great  vexation  to  those  who  de 
manded  the  same.3  Lord  Cornbury  also  wrote  the  board  of 
trade  on  November  26,  1705,  in  regard  to  the  charges  against 
Rhode  Island,  and  asserted  that  they  had  denied  appeals.4 
In  support  of  his  charge,  Governor  Dudley  brought  forward 
two  affidavits,  now  in  the  public  record  office  in  London,  one 
affirming  that  at  a  court  of  trials  held  at  Newport,  in  Septem 
ber,  1704,  the  request  of  John  Baffin  and  others  for  an  appeal  to 
England  "  in  the  cases  of  Mr.  Elisha  Hutchinson  and  others, 
his  partners,  against  John  Tones  and  Aron  Jaques "  was 
refused,  on  the  ground  that  the  plaintiffs  should  have  a  rehear 
ing  in  another  court  before  the  appeal  be  granted,  the  gov 
ernor,  however,  entering  his  dissent  from  this  opinion  of  the 
court.  In  the  other  affidavit  James  Menzies,  on  October  12, 
1705,  being  called  and  examined  in  the  presence  of  Governor 
Dudley,  testified  and  declared  that  "  the  government  and 
courts  of  the  colony  of  Rhode  Island  have  frequently  refused 
appeals  to  the  Queen's  Majesty  and  the  late  King  William  in 
councill  as  in  the  case  of  Brinley  rers.  Dyer  and  Brenton  vers. 
W  alley."5  In  proof  of  Cornbury's  charge,  he  himself  cited 


1  Rhode  Island  Colonial  Records,  III,  p.  375. 

2Ib.,  Ill,  p.  548. 

3Ib.,  Ill,  p.  543. 

4Ib.,  Ill,  p.  545. 

5  MS.  copies  in  private  hands. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  335 

the  case  of  Major  Palmes — who  was  even  then,  November  20, 
1705,  going  to  England  to  make  his  complaint — and  referred 
to  the  oath  of  James  Fitch  and  Samuel  Mason.  From  an 
examination  of  all  the  sources  at  hand  nothing  further  can  be 
found  in  regard  to  the  particular  cases  mentioned  in  these  let 
ters  and  documents,  with  the  possible  exception  of  a  reference 
in  a  report  on  the  irregularities  of  Ehode  Island l  which  the 
Earl  of  Bellomont  submitted  to  the  home  government  on 
November  27,  1699.  In  this  document  Bellomont  asserts  that 
"  they  are  willfully  negligent  and  refuse  to  comply  with  or 
obey  the  King's  commandments  sent  unto  them;  particularly, 
they  are  complained  of  by  Mr.  Briuley  and  Nathaniel  Water 
man,  for  not  observing  the  King's  orders,  relating  to  some 
trials,  had  within  the  courts  within  that  colony,  wherein  they 
were  concerned."  It  is  impossible  to  say  whether  reference  is 
here  made  to  the  case  of  Brinley  v.  Dyer  which  was  mentioned 
in  one  of  the  affidavits  just  cited.  Even  if  it  does  not  so  refer, 
however,  the  earl's  statement  is  of  interest  in  connection  with 
the  matter  under  consideration.  But  it  should  be  further 
remarked  that  in  this  report  there  is  no  direct  assertion  in 
regard  to  the  denial  of  appeals  by  the  colonial  courts,  the 
only  possible  reference  to  such  denial  being  contained  in  the 
earl's  remarks,  just  quoted,  with  regard  to  the  complaints  of 
Brinley  and  Waterman. 

As  a  result  of  the  charges  preferred  against  the  New  Eng 
land  colonies  the  board  of  trade,  in  a  representation2  to  Queen 
Anne  in  regard  to  Massachusetts,  Ehode  Island,  and  Connecti 
cut,  January  10,  1706,  asserted  that  u  divers  of  them  have 
denied  appeals  to  Your  Majesty  in  council,  by  which  not  only 
the  inhabitants  of  these  colonies,  but  others  Your  Majesty's 
subjects  are  deprived  of  that  benefit  enjoyed  in  the  planta 
tions  under  Your  Majesty's  immediate  government,  and  the 
parties  aggrieved  are  left  without  remedy  against  the  arbi 
trary  and  illegal  proceedings  of  their  courts."  While  this 
representation,  in  referring  to  Connecticut,  states  that  "  they 
have  refused  to  allow  of  appeals  to  Your  Majesty  in  council, 
and  give  great  discouragements  and  vexation  to  those  that 
demand  the  same,"  specific  references  to  Massachusetts  and 
Ehode  Island  contain  no  claim  in  regard  to  denial  of  appeals. 


1  Rhode  Island  Colonial  Records,  III,  p.  385. 
*Ib.,  IV,  p.  12. 


336  AMERICAN    HISTORICAL    ASSOCIATION. 

While  it  is  impossible  to  discuss  this  interesting  question 
further  at  the  present  time,  it  must  be  admitted  that  from  the 
evidence  thus  far  obtained  there  can  be  no  doubt  that  Rhode 
Island  did  actually  evade  appeals  in  some  cases;  but  that 
the  courts  of  the  colony  went  to  the  length  of  plain  refusal, 
as  stated  in  certain  of  the  charges,  is  at  least  questionable. 
Undoubtedly  the  court  of  trials  held  at  Newport  in  Septem 
ber,  1704,  evaded  an  appeal  in  the  case  of  Hutchinson  et  al.  v. 
Fones  and  Jaques  by  deciding  that  the  parties  should  have 
a  rehearing  in  the  colonial  court,  for  at  that  time  there  was 
no  law  of  the  colony  in  regard  to  a  positive  rehearing,  cases 
being  retried  before  the  same  judges,  who  would  very  rarely 
indeed  reverse  a  former  decision  made  by  themselves.  With 
out  doubt,  too.  the  power  assumed  by  the  assembly  of  chancer- 
izing,  or  mitigating,  the  damages  assessed  by  other  colonial 
courts,  enabled  that  body  to  evade  in  some  cases  the  necessity 
of  allowing  an  appeal  from  its  own  decision.  If  the  assembly 
anticipated  that  an  appeal  might  be  demanded  from  its  deci 
sion,  it  could  chancerize  the  damages  to  a  point  below  the 
sum  required  for  an  appeal  to  the  King  in  council;1  then,  if 
the  appeal  were  actually  demanded,  the  assembly  could  very 
gracefully  decline  to  grant  it  on  the  ground  of  illegality.  But 
Avhether  or  not  the  courts  of  Rhode  Island  did  really  deny 
appeals  in  cases  where  legally  they  should  have  granted  them, 
the  following  considerations  will  be  of  interest  as  showing, 
among  other  things,  that  no  record  has  been  found  of  an 
appeal  granted  by  a  Rhode  Island  court  prior  to  or  during  the 
period  Avheu  the  charge  of  denial  was  preferred  against  the 
colony. 

Indeed,  although  a  letter  written  by  Roger  Williams  to  the 
town  of  Providence  in  1654  refers  to  certain  citizens  who  were 
"  zealously  talking  of  undoeing  themselves  by  a  tryall  in  Eng 
land,"  and  although  the  wording  of  the  act  of  1666  indicates 
that  appeals  to  the  King  in  council  were  frequently  allowed 
even  at  that  early  day,  the  writer  has  been  unable  to  find  in 
the  records  of  Rhode  Island  courts  an  appeal  case  prior  to 
1706.2  Between  that  date  and  1776  we  find  in  Rhode  Island 

1  The  instructions  of  1689  specified  that  the  sum  in  controversy  must 
amount  to  £500. 

2  The  case  of  William  Harris,  1677-1679,  appears  not  to  have  been  pre 
cisely  a  case  of  judicial  appeal. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  337 

official  record  of  7  appeals  granted  by  the  general  assembly1 
and  10  granted,  by  the  superior  court  for  Providence  County. 
Beside  these  we  have  authentic  record  of  at  least  3  other  cases 
appealed  from  the  superior  court  of  the  colony.2  An  official 
examination  of  the  privy,  council  register,  however,  recently 
made  for  the  writer  by  Thomas  Preston,  esq.,  librarian  to  the 
privy  council,  and  extending  from  1675  to  177G,  discloses  59 
Rhode  Island  appeal  cases  decided  by  the  King  in  council, 
the  first  there  recorded  being  of  the  year  1735.  Of  these  6 
are  among  the  20  of  which  we  find  record  in  Rhode  Island. 
Under  date  of  December  8,  1894,  Mr.  Preston  writes  that,  al 
though  there  were  a  few  petitions  prior  to  1700  as  to  disputed 
boundaries  of  estates,  there  is  no  regular  or  judicial  appeal 
entered  earlier  than  1735.  It  is  natural  to  conclude,  therefore, 
that  the  cases  appealed  prior  to  1735  and  some  subsequently 
to  that  date  were  either  not  prosecuted  or  not  finally  adjudi 
cated  by  the  King  in  council.3 

It  may  not  be  without  some  interest  at  this  point  to  note 
what  decisions  were  made  by  the  King  in  council  in  the  59 
Ehode  Island  cases  adjudicated  by  that  tribunal  between  1735 
and  1770.  Twenty-two  of  these  appeals  were  dismissed  for 
non-prosecution,  one  of  them  being  afterwards  reaffirmed.  In 
15  the  decisions  of  the  colonial  courts  were  reversed,  and  in  two 
of  these  the  council  sent  directions  to  the  lower  tribunal.  In 
11  the  decisions  of  the  colonial  courts  were  affirmed.  Six  pre 
vious  deci  sions  were  varied,  one  of  them  chiefly  as  to  the  rate 
of  interest  011  bills  of  credit  for  £28,179,  the  damages  in  an 
other  being  reduced,  a  peremptory  order  issued  in  a  third, 
and  two  of  the  remaining  three  being  remitted.  In  one  both 

1  Two  of  these  were  appeals,  not  from  decisions  of  the  assembly,  but 
from  other  courts;   one  from  the  general  court  of  trials  and  the  other 
from  the  superior  court.     See  remarks  on  the  procedure  of  the  general 
assembly  in  a  previous  part  of  this  paper. 

2  Cases  in  regard  to  the 'church  lands  at  South  Kingstown. 

3  It  should  be  remembered,  however,  that  Mr.  Preston  states    merely 
what  there  is  on  record  at  the  privy  council  office,  i.  e.,  what  is  the  earliest 
thing  there,  not  what  was  absolutely  the  first.     Several  of  the  appeals 
granted  by  Rhode  Island  courts  prior  to  1735  may  have  been  adjudicated 
by  the  King  in  council,  although  not  recorded  in  the  privy  council  register. 
One  such  case,  Torrey  v.  Mumford,  1734,  will  be  refered  to  later.     Some  of 
the  cases  appealed  subsequently  to  1735,  and  of  which  we  can  find  no 
record  in  the  register,  may  possibly  also  have  been  decided  by  the  Kiiig 
in  council. 

H.  Mis.  91 22 


338  AMERICAN   HISTORICAL    ASSOCIATION. 

the  appeal  and  the  cross  appeal  were  dismissed ;  one  was  refer 
red  back  to  the  colonial  court  with  special  directions;  the 
verdict  in  one  was  set  aside  and  a  new  trial  in  the  colony 
directed;  one  was  simply  dismissed;  and  in  the  remaining  one 
a  peremptory  order  was  issued  to  the  colonial  judges  to  carry 
out  the  council's  decision  in  a  previous  suit  by  the  same  parties. 

Before  reviewing  individual  cases  it  will  be  instructive  to 
make  a  few  introductory  comments  upon  the  action  of  Rhode 
Island  courts  in  the  matter  of  observing  legal  requirements  in 
regard  to  allowing  appeals. 

Prior  to  the  passage  of  the  act  of  1719  the  general  assembly 
granted  at  least  one  appeal  where  the  matter  in  dispute  was 
not  of  the  legal  value.  The  instructions  of  1689  specified  that 
the  sum  involved  must  equal  £500;  but  the  assembly  in  1715 
granted  an  appeal  in  the  case  of  Chapman  and  Norton  v. 
Rouse,1  where,  in  an  action  for  trespass,  the  amount  of  dam 
ages  claimed  was  only  £100,  current  money  of  JSTew  England. 

The  colonial  acts  of  1719, 1746, 1764,  and  1771  specified  that 
no  appeal  should  be  allowed  where  the  matter  in  controversy 
was  below  a  certain  prescribed  value,  and  granted  to  the  court 
where  the  appeal  was  prayed  the  power  of  determining  whether 
the  mattter  involved  amounted  to  the  legal  requirement.  That 
the  power  thus  conferred  upon  colonial  courts  was  put  into 
actual  practice  may  be  proved  by  concrete  examples.  The 
general  assembly,  in  the  exercise  of  its  functions  as  a  court  of 
justice,  refused  several  appeals  on  the  ground  that  the  matter 
in  dispute  was  not  of  the  value  required  by  law.  Among  such 
cases  were  Brentou  v.  Mott  and  Freebody  v.  Whipple,  in  1720, 
and  Brenton  v.  Stanton,  in  1728.2  Between  1747  and  1776  the 
superior  court  for  Providence  County  refused  eight  appeals 
for  the  same  reason.3 

According  to  the  act  of  1706  the  appellant  was  required  to 
furnish  bond  for  the  prosecution  of  his  appeal  according  to  the 
time  agreed  upon  by  the  governor  and  council;  and  according 
to  the  statute  of  1764  both  the  appellant  and  the  appellee  were 
required  to  give  bond  in  the  sum  of  £250,  lawful  money,  with 
a  good  surety  or  sureties,  the  appellant  giving  this  bond  to  the 
superior  court,  or  to  its  clerk,  before  adjournment,  the  appellee 
filing  his  bond  in  the  clerk's  office  before  he  should  receive  a 


1  Rhode  Island  Colonial  Records,  IV,  p.  199. 

2  For  these  cases  see  Rhode  Island  Colonial  Records,  IV,  pp.  268,  269,  412. 

3  MS.  records  of  superior  court. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  339 

copy  of  the  case.  Let  us  examine  court  records  to  see  whether 
these  provisions  were  complied  with. 

Under  the  act  of  1706  bond  was  furnished  by  the  appellants 
in  four  of  the  cases  appealed  from  the  decisions  of  the  general 
assembly:  Albrow  v.  Noyes,  in  1706;  Chapman  and  Norton  v. 
House,  in  1715;  Ford  v.  Hodgson,  in  1717,  and  Crawford  v. 
Smith,  in  1719.  No  sum  is  specified  in  the  record  of  these 
cases  except  that  of  Ford  v.  Hodgson,  where  the  appellant 
gave  bond  in  the  sum  of  £300.  In  this  case  tiie  appellee  was 
also  required  to  give  bond  in  the  sum  of  £1,000,  with  security, 
although  there  was  no  colonial  law  or  English  regulation  at 
that  time  requiring  bond  of  the  appellee.  It  was  customary 
in  these  general  assembly  cases  to  file  bond  in  the  recorder's 
office  within  ten  days  after  the  appeal  had  been  granted. 

The  records  state  that  bond  was  furnished  by  the  appellants 
or  required  of  them  by  the  court  in  nine  of  the  ten  appeals 
granted  by  the  superior  court  for  Providence  County  between 
1747  and  1776.  In  two  of  these  nine  cases,  Galton  r.  Collins, 
appealed  in  1747,  and  Sessions  r.  Brayton,  appealed  in  1767, 
both  the  appellant  and  the  appellee  gave  bond;  in  Sessions  v. 
Braytou  each  party  to  the  suit  giving  the  bond  within  forty 
days  from  the  rising  of  the  court  in  the  sum  of  £200,  sterling 
money  of  Great  Britain.  In  the  case  of  Isaacs  b.  Merritt, 
appealed  in  1756,  bond  was  furnished  for  the  appellant  by  Isaac 
Hart  and  John  Cole  in  the  sum  of  £100  sterling.  The  appel 
lant  in  the  case  of  Tyler  v.  Russell,  appealed  in  1758,  was 
ordered  by  the  court  to  give  bond  for  £100  sterling,  with  surety. 
The  appellants  in  Arnold  et  al.  v.  Greene,  appealed  in  1765, 
were  required  to  give  bond  in  the  sum  of  £150  sterling,  within 
thirty  days  after  the  rising  of  the  court.  It  will  be  noticed  that 
in  certain  cases  appealed  subsequently  to  the  passage  of  the 
act  of  1764  bond  was  not  given  in  the  exact  sum,  £250,  lawful 
money,  specified  by  that  statute;  and  that  bonds  were  not 
always  required  to  be  filed  before  the  rising  of  the  court,  as 
provided  by  the  act  just  cited. 

The  records  both  of  the  assembly  and  the  superior  court  are 
not  always  exact  in  statement.  We  read,  for  example,  that  in 
certain  cases  the  parties  complied  with  the  law,  although  the 
amount  of  the  bond,  the  time  of  filing,  and  similar  particulars 
are  not  recorded.  While  we  find  instances,  therefore,  where 
the  law  was  not  complied  with  to  the  letter,  it  is  probable  that 
Rhode  Island  courts  observed  in  the  main  the  provisions  of 
legislative  enactments. 


340  AMERICAN    HISTORICAL    ASSOCIATION. 

The  processes  of  appeal  may  be  further  illustrated  by  trac 
ing  the  history  of  certain  cases.  The  litigation1  in  regard 
to  the  church  lands  at  South  Kingstown,  during  which  the 
attempt  was  made  hi  four  cases  t6  appeal  to  England,  is  of  so 
much  interest  and  importance  that  it  demands  a  place  in  the 
history  of  Ehode  Island  appeals. 

In  1657  the  chief  sachems  of  the  Xarragansett  country  sold 
Petaquamscut  Hill  for  £16  to  John  Porter,  Samuel  Wilbore, 
Thomas  Murnford,  and  Samuel  Willson,  of  Khode  Island,  and 
John  Hull,  of  Massachusetts ;  and  in  the  year  following  the 
sachem  of  Kienticut  sold  some  lands  north  of  this  tract  to  the 
same  purchasers.  Brenton  and  Arnold  were  afterwards  asso 
ciated  with  these  five  men  and  jointly  they  became  known  as 
"  the  seven  purchasers." 

On  June  4,  1668,  five  of  these  purchasers  passed  an  order 
"that  a  tract  of  300  acres  of  the  best  laud,  and  in  a  conven 
ient  place,  be  laid  out,  and  forever  set  apart  as  an  encourage 
ment,  the  income  or  improvement  thereof  wholly  for  an  ortho 
dox  person,  that  shall  be  obtained  to  preach  God's  word  to  the 
inhabitants."  It  appears  probable  that  no  deed  or  more  formal 
conveyance  was  ever  made.  In  1679,  however,  a  confirmatory 
order  was  passed;  and  in  1692  the  tract  was  surveyed,  platted, 
and  the  words  "  to  the  ministry"  entered  upon  the  draft.  It 
will  thus  be  noticed  that  the  proprietors  did  not  define  the  term 
"  orthodox : "  and  it  would  seem  that  the  phraseology  of  the  gift 
was  purposely  left  undefined,  for  at  a  meeting  of  the  seven 
purchasers  in  1692  it  was  thought  best  to  assign  it  for  the  use 
of  the  Presbyterians,  but  Jahleel  Brenton,  esq.,  argued  that 
it  would  damage  their  reputation  in  England,  if  they  gave  so 
much  to  the  Presbyterians  and  nothing  to  the  Episcopal 
Church;  "and  therefore,"  he  said,  "if  you  will  be  ruled  by  nie? 
we  will  not  express  it  to  the  Presbyterians,  but  will  set  it  down 
1o  the  ministry  and  let  them  dispute  who  has  the  best  title  to 
it."  Upon  the  interpretation  of  this  word  "orthodox"  hinged 
the  whole  subsequent  controversy. 

No  one  claiming  these  ministerial  lands,  Henry  Gardner,  in 
1702,  entered  upon  20  acres  of  them  and  James  Buudy  upon 


1  Douglass's  Summary;  Updike's  Episcopal  Church  in  Rhode  Island,  pp. 
68-82;  Rhode  Island  Historical  Society  Collections,  III,  pp.  123-130;  Johns 
Hopkins  University  Studies,  Series  IV,  p.  124 ;  College  Tom,  by  Caroline 
Hazard,  pp.  82-85;  Catalogue  of  the  Prince  Library.  I  regret  that  the 
moving  of  the  Boston  Public  Library  made  it  impossible  to  examine  the 
Prince  MSS.  themselves. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  341 

the  remaining  280.     In  1719  George,  son  of  Thomas  Mumford, 
bought  these  280  acres  of  Bundy. 

Shortly  after  this  transfer  several  inhabitants  of  the  Narra- 
gansett  country  petitioned  the  Bishop  of  London  and  the  Soci 
ety  for  the  Propagation  of  the  Gospel  in  Foreign  Parts  for  a 
missionary.  Dr.  McSparran  was  appointed  as  such  in  1721, 
and  Mr.  Gardner  thereupon  delivered  to  him  the  20  acres  of 
which  he  had  held  possession  since  1702.  In  1723  Mr.  McSpar 
ran,  upon  a  writ  of  ejectment,  secured  possession  of  the  280 
acres  held  by  Mumford,  on  the  ground  of  the  confirmation  of 
1079  and  the  survey  of  1693,  the  original  grant  of  1668  being- 
secreted.  In  two  trials  in  colonial  courts,  however,  McSparran 
was  defeated.  He  appealed  to  the  King  in  council,  but  the 
Society  for  the  Propagation  of  the  Gospel  refused  to  lend  its 
assistance  and  the  matter  rested,  Mumford  keeping  possession 
of  the  property. 

In  1732  a  Congregational  or  Presbyterian  church  was  formed 
in  Kingstown  under  Rev.  Joseph  Torrey  as  the  "  first  incum 
bent  of  ordination."  Mr.  Torrey  at  once  laid  claim  to  the  whole 
tract  of  300  acres.  He  brought  action  against  Gardner  in  the 
colonial  courts  for  the  20  acres,  but  was  defeated.  On  Septem 
ber  2, 1735,  Torrey  prayed  the  superior  court  for  an  appeal,  in 
this  case  to  the  King  in  council,  but  the  court  declined  to  grant 
it.  In  1732  he  brought  an  action  of  ejectment  against  Mum- 
ford  for  the  280  acres,  but  both  the  inferior  and  superior  courts 
decided  in  favor  of  Mumford.  Upon  Torrey's  appeal  to  the 
King  in  council  these  verdicts  were  disallowed  and  possession 
of  the  280  acres  given  in  1734  to  the  appellant.  Upon  advice 
from  England,  Torrey,  in  1735,  conveyed  this  tract  to  six  trus 
tees,  who  in  turn  leased  it  to  Eobert  Hazard. 

Dr.  McSparran,  the  Episcopal  or  Church  of  England  minis 
ter,  now  brought  an  action  against  Hazard,  as  Torrey's  tenant, 
for  the  tract  of  280  acres.  In  1737  the  original  order  of  the 
proprietors  in  regard  to  the  church  lauds,  which  had  been 
secreted,  came  to  light,  and  Mr.  McSparran,  in  behalf  of  him 
self  and  successors  in  St.  Paul's  Church,  by  the  advice  of  his 
lawyers  brought  a  new  writ  of  ejectment  against  Hazard,  as 
tenant  of  the  280  acres.  He  was  defeated  in  the  colonial 
courts,  but  was  finally  granted  an  appeal  to  England.  Upon 
a  full  trial  before  the  King  in  council,  that  tribunal,  on  May 
7,  1752,  decided  adversely  to  the  claims  of  McSparran.  The 
decision  of  the  superior  court  was  sustained  and  the  lands 
confirmed  to  Dr.  Torrey. 


342  AMERICAN    HISTORICAL    ASSOCIATION. 

Considerations  other  than  pecuniary  undoubtedly  had  much 
weight  in  the  progress  of  this  controversy.  The  Society  for 
the  Propagation  of  the  Gospel  had  established  many  Episcopal 
missionaries  in  the  colonies,  especially  in  those  of  the  North; 
and  in  this  activity  the  Congregational  ministry  perceived  an 
intention  on  the  part  of  the  English  Government  not  only  to 
spread  the  Episcopal  faith,  but  to  establish  bishops  among 
them.  It  was  these  considerations  which  aroused  the  jealousy 
of  the  other  denominations;  and  before  the  close  of  the  liti 
gation  nearly  all  of  the  Episcopal  and  non-Episcopal  clergy 
became  involved  in  the  controversy.  Pamphlets  were  pub 
lished  on  both  sides  which  were  not  lacking  in  partisan  ardor 
or  in  bitterness,  and  even  other  colonies  outside  of  Rhode 
Island  became  deeply  interested  in  the  struggle.  In  a  letter l 
written  to  Dr.  Torrey  on  July  14,  1739,  Dr.  Benjamin  Colman, 
of  Boston,  says  that  the  general  court  of  Massachusetts  went 
to  the  length  of  ordering  "  a  Collection  through  all  the  Con 
gregations  in  the  Province  and  that  the  Moneys  that  shal  be 
collected  be  put  into  our  Hands  by  the  Subscribers  for  your 
Service,  in  the  further  Support  of  your  Defense  against  the 
Suite  which  Dr.  McSparran  has  so  unjustly  commenced  ag* 
you."  The  amount  thus  collected  by  Dr.  Colniau  amounted  to 
£747  8s.  Other  collections  were  received  from  Connecticut. 
The  controversy  finally  became  not  only  acrimonious,  but 
destructive  of  any  real  progress  in  the  spread  of  Christian 
beliefs. 

The  decision  by  the  King  in  council,  however,  was  a  triumph 
of  principle  over  the  sectarian  partialities  of  the  members  of 
that  tribunal.  According  to  the  law  of  England  no  one  was 
considered  orthodox  who  was  not  attached  to  the  Established 
Church;  but  the  King  in  council  held  that  the  term  "ortho 
dox,"  as  used  in  this  New  England  document,  applied  legally 
to  all  who  were  sound  in  the  doctrines  of  their  own  particular 
church,  irrespective  ol  denomination.  It  being  determined  by 
the  colonial  jury  that  the  grantors  of  the  church  lands  belonged 
to  the  Congregational  or  Presbyterian  faith,  the  King  in  coun 
cil  decided  that  the  intention  of  the  donors,  by  the  term  "ortho 
dox,"  was  that  the  estate  should  be  appropriated  for  the 
support  of  the  ministry  of  that  denomination;  and  they  so 
decided,  notwithstanding  the  fact  that  a  clergyman  of  the 
Church  of  England  was  the  adverse  party  to  the  suit. 

XMS.  in  private  hands. 


APPEALS  FROM  COLONIAL  COURTS HALELTINE.  343 

While  there  is  no  particular  importance  attaching  to  the 
matters  involved  in  Isaacs  v.  Merritt,  this  case  will  further 
illustrate  the  practice  of  appealing  quite  as  well  as  any  other. 
There  is,  nevertheless,  some  little  interest  in  this  appeal,  for 
the  reason  that  it  is  one  of  the  few  cases  of  which  we  find 
official  record  both  in  Rhode  Island  and  in  England.  It  is  also 
the  only  one  of  such  cases  among  the  documents  of  which  we 
find  an  appeal  bond.  The  salient  facts l  in  this  case  are  here 
given. 

John  Merritt,  of  Providence,  brought  action  against  Jacob 
Isaacs,  of  Newport,  in  the  superior  court  of  common  pleas  for 
Providence  County,  at  the  December  term,  1755,  for  large  dam 
ages.  At  this  trial  Merritt  complained  that  the  defendant  had 
broken  his  u  promise  and  assumption  "  made  to  the  plaintiff. 
He  alleged  that  on  April  14,  1743,  Abraham  Isaacs,  of  New 
York,  by  his  promissory  note  of  that  date,  duly  signed,  became 
indebted  to  him  in  the  sum  of  £285,  lawful  money  of  New 
York,  together  with  the  lawful  interest  thereon  till  the  same 
should  be  paid.  Being  so  indebted,  Abraham  Isaacs  died 
intestate,  and  Hannah  Isaacs,  widow  of  the  said  Abraham, 
became  the  administratrix  of  the  estate.  Hannah  Isaacs  dying 
before  she  had  fully  administered  the  estate  of  her  husband, 
the  administration  of  the  residue  was  lawfully  granted  to  the 
defendant,  Jacob  Isaacs.  But  after  the  death  of  Abraham 
and  during  the  life  of  Hannah,  he  (Merritt)j  at  the  October 
term  of  the  supreme  court  of  New  York  in  1744,  recovered 
judgment  on  the  said  note  against  Hannah  for  the  same,  with 
damages  and  costs  amounting  in  all  to  £338  lid.,  to  be  paid 
out  of  such  goods  and  chattels  as  were  possessed  by  the  said 
Abraham  during  his  lifetime,  when  the  same  should  thereafter 
come  to  hand.  After  Hannah's  death,  Merritt  was  about  to 
sue  the  new  administrator,  Jacob  Isaacs,  on  the  aforesaid 
judgment;  but  he  (Merritt)  agreed  to  forbear  for  a  season  the 
prosecution  of  the  suit,  Isaacs  paying  him  £100,  part  of  the 
sum  for  which  judgment  was  given,  and  solemnly  promising 
to  pay  the  remainder  of  the  said  sum,  together  with  interest,  in 
a  short  time.  Merritt  therefore  suspended  prosecution  on  the 
said  judgment  till  October  1,  1754,  when  Isaacs  had  not  yet 
paid  the  remainder  of  the  said  sum,  though  often  requested  to. 
For  these  reasons  he  asserted  that  Isaacs  had  broken  his 


1MS.  records  of  superior  court;  MS.  privy  council  register. 


344  AMERICAN    HISTORICAL    ASSOCIATION. 

promise,  and  claimed,  as  laid  in  the  writ  of  September  18, 1755, 
damages  therefor  to  the  amount  of  £6,000,  current  money  of 
New  England. 

Isaacs,  on  the  other  hand,  alleged  that  he  had  never  prom 
ised  to  pay  the  aforesaid  judgments  in  the  manner  and  form 
described  by  Merritt;  that  according  to  law  such  judgments 
were  to  be  paid  by  administrators  out  of  the  goods,  chattels, 
and  credits  of  the  intestate;  that  at  the  time  of  the  purchase 
of  the  plaintiff's  writ,  or  since,  there  had  not  come  into  his 
(Isaacs's)  hands  any  other  assets  of  the  said  intestate's  estate 
wherewith  to  satisfy  the  plaintiff's  demands;  and  that  this 
was  the  reason  why  the  remaining  part  of  the  said  judgments 
was  still  unpaid. 

After  due  trial  of  this  case,  the  inferior  court  of  common 
pleas  decided  that  Merritt  should  recover  from  Isaacs  £236 
13s.  Id.,  current  money  of  New  York,  with  costs  of  suit,  amount 
ing  to  £74  6s.,  Rhode  Island  currency.  Isaacs  appealed  to  the 
superior  court  for  Providence  County,  and  at  the  March  term, 
1756,  the  decision  of  the  inferior  court  was  affirmed,  with  costs. 
Isaacs  then  moved  for  an  appeal  to  the  King  in  council,  Avhich 
was  granted.  He  complied  with  the  law  regulating  appeals 
to  England,  and  furnished  bond  in  the  sum  of  £100  sterling. 
Isaac  Hart,  of  Newport,  and  John  Cole,  of  Providence,  were 
the  appellant's  bondsmen;  and  the  document  was  signed, 
sealed,  and  delivered  to  the  court  in  the  presence  of  Samuel 
Chase  and  Alexander  Black.1 


1  The  bond  is  as  follows: 

liond  to  appeal  to  King  in  Council. — Isaac  Hart  and  John  Cole  to  John  Merritt, 
March  Term,  1756. 

Know  all  Men  by  these  Presents  That  we  Isaac  Hart  of  Newport  and 
John  Cole  of  Providence  in  the  Colony  of  Rhode  Island  Merchants  are 
held  and  Bound  to  John  Merritt  of  Providence  aforesaid  mentd  in  the  Sum 
of  one  Hundred  pounds  Sterling  Money  of  Great  Britain  to  be  paid  to  the 
said  John  Merritt  or  to  his  Executors  Administrators  or  Assigns  To.  the 
which  payment  well  and  truly  to  be  made  We  bind  ourselves  our  Heirs 
Executors  Administrators  and  Assigns  and  last  of  Us  by  himself  for  the 
whole  and  in  the  whole  and  our  and  last  of  our  Heirs  Executors  and 
Administrators  firmly  by  these  presents  Sealed  with  our  Seals  Dated  the 
Twenty  Second  day  of  March  in  the  29th  Year  of  His  Majestyes  Reign 
A  D  1756 

Whereas  the  above  Mentioned  John  Merritt  has  now  obtained  a  Judg 
ment  of  our  Superior  Court  of  Judicature  against  Jacob  Isaacs  of  Newport 
in  the  County  of  Newport  &  Colony  aforesaid  Merchant  As  by  the  Record 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  345 

The  case  was  finally  brought  before  the  King  in  council  tor 
adjudication.  On  February  17, 1758,  or  nearly  two  years  after 
the  granting  of  the  appeal  by  the  superior  court,  the  privy 
council  reversed  the  decision  of  that  tribunal,  and  thus  ren 
dered  a  judgment  in  favor  of  the  appellant. 

We  have  now  reviewed  as  fully  as  possible  within  the  limits 
of  this  paper  the  processes  of  appeal  in  the  various  colonial 
courts.  Occasional  references  have  necessarily  been  made  to 
the  King  and  privy  council,  but  the  account  as  thus  far  given 
must  be  supplemented  by  at  least  a  few  words  in  regard  to 
the  privy  council  as  an  English  institution  and  by  a  brief  his 
torical  consideration  of  the  procedure  of  the  King  in  council 
as  the  supreme  court  of  the  colonies. 

Although  appeals  were  first  adjudicated  by  the  King  and 
his  privy  council  in  the  latter  part  of  the  sixteenth  century, 
the  council  itself  had  an  existence  at  least  four  centuries  prior 
to  that  period.  In  the  early  days  it  was  called  the  Concilium 
Regis  Privatum,  the  Concilium  Continuum,  and  the  Concilium 
Secretum  Regis.  At  a  later  period  it  was  known  simply  as 
the  council  board  and  the  privy  council.  The  King  sat  with 
these  privy  councilors  at  his  own  pleasure,  and  their  chief 
duty  was  to  advise  the  Crown  to  the  best  of  their  "  cunning 
and  discretion."  The  number  of  privy  councilors  was  also 
regulated  according  to  the  King's  will.  In  ancient  times,  and 
even  as  late  as  the  reign  of  Edward  III,  there  were  seldom 
more  than  fifteen.1  Among  them  were  the  treasurer,  the  chan- 


of  said  Court  appears  and  Jacob  Isaacs  being  agrieved  therewith  Appeals 
to  His  Majesty  in  Council  in  Great  Britain  from  the  Said  Judgment  of  the 
aforesaid  Court  of  Judicature  now  sitting  in  providence  aforesaid. 

The  Condition  of  the  above  written  obligation  is  Such  that  if  the  above 
mentioned  Jacob  Isaacks  Shall  &  Do  within  Twelve  Months  and  a  Day 
from  the  date  hereof  well  &  truely  prosecute  his  Said  Appeal  with  effect 
or  in  Default  thereof  well  and  truely  pay  &  Satisfy  the  Said  John  Merritfc 
His  Heirs  Executors  Administrators  &  Assigns  all  such  Costs  and  Dam 
ages  as  they  or  any  of  them  Shall  have  &  Sustain  in  Defending  against 
the  aforesaid  Appeal  then  this  present  obligation  to  be  void  &  of  no  Effect 
or  Else  to  be  and  Remain  in  full  force  and  virtue 

I.  HART  [SEAL] 

JOHN  COLE     [SEAL] 

Signed  Sealed  &  Delivered  in  the  presence  of— 
SAM  CHACE 
ALEXK  BLACK 


1  Crabb's  History  of  English  Law,  p.  217. 


346  AMERICAN    HISTORICAL    ASSOCIATION. 

cellor,  and  such  other  persons  learned  in  the  law  and  judicial 
matters  as  the  King  saw  fit  to  appoint.  After  Edward's  time, 
however,  the  number  so  increased  that  it  was  found  impossible 
to  transact  the  King's  affairs  with  secrecy  and  dispatch,  and 
Charles  II,  in  1G79,  limited  it  to  thirty.  Of  these,  fifteen  were 
to  be  the  principal  officers  of  state  and  were  to  be  councilors 
by  virtue  of  their  official  position;  the  remaining  fifteen  were 
made  up  of  ten  lords  and  five  commoners.  After  Charles's 
time  the  number  of  councilors  was  again  much  increased,  and 
finally  became  indefinite.  The  president  of  the  council  Avas 
the  third  great  officer  of  state.  The  duty  of  president  was 
something  more  than  that  of  a  privy  councilor,  for  he  reported 
to  the  King  whatever  occurred  at  the  council  table  in  his 
absence. 

On  February  20,  1627,  the  privy  council,  sitting  at  White- 
hall?  passed  certain  orders1  to  be  observed  in  meetings  of  the 
council  as  a  tribunal  of  justice.  As  far  as  we  can  ascertain 
these  orders  formed  the  first  official  provision  in  regard  to 
the  method  of  transacting  the  judicial  affairs  of  the  council. 
Although  the  records  do  not  so  specify,  there  can  be  no  doubt 
that  colonial  appeals  were  adjudicated  according  to  these  reg 
ulations.  The  orders  are  as  follows : 

I.  Ill  the  term  times,  the  councillors,  of  ordinary  course,  are  to  sit  on 
Wednesdays. 

II.  When  any  causes  are  handled,  and  partys  heard  speak  on  both  sides, 
the  Lords  are,  "by  questions  or  otherwise,  to  inform  themselves  of  the 
truth  of  the  matter  of  fact,  but  not  to  discover  any  opinions  till  all  be 
fully  heard. 

III.  When  any  cause  is  fully  heard,  the  partys  are  then  to  retire,  and 
the  Lords  to  debate  alone,  and  if  any  variety  of  opinions  continue,  Avhich 
cannot  be  reconciled,  then   the  Lords  are  to  vote  it  severally,  if  it  be 
demanded;  and  the  Lord  President,  or  one  of  the  principal  secretarys,  if 
the  Lord  President  be  absent,  is  to  take  the  votes. 

IV.  In  voting  of  any  cause,  the  lowest  councillor  is  to  begin  and  speak 
first,  and  so  it  is  to  be  carried  by  most  voices ;  because  every  councillor 
hath,  equal  vote  there :  and  when  the  business  is  carried  by  the  most 
voices,  no  publication  is  afterwards  to  be  made,  by  any  man,  how  the 
particular  voices  and  opinions  went. 

V.  Upon  the  petitions  of  suitors,  the  clerk  of  the  council  who  then 
waits,  shall  set  a  note,  when  the  petitions  were  exhibited,  that  the  Lords 
may  thereby  see  how  the  suitors  stand  in  seniority,  and,  according  to  that 
and  other  necessity  of  occasion,  they  may  be  despached,  wherein  respect 


lFor  these  orders  and  other  official  provisions  in  regard  to  privy  council 
procedure,  noted  in  the  following  pages,  see  Macqueen's  Appellate  Juris 
diction  of  the  House  of  Lords  and  Privy  Council. 


APPEALS  FROM  COLONIAL  COURTS HAZELTINE.  347 

is  to  be  had  to  the  poorest  petitioners,  that  they  be  not  wearied  out  with 
over  long  attendance. 

VI.  At  every  council,  before  the  Lords  rise  from  the  board,  the  Lord 
President,  or  one  of  the  principal  secretarys.  in  his  absence,  is  to  signify 
to  the  Lords  what  business  of  the  day  do  remain,  and  to  take  their  reso 
lution  with  which  to  begin  the  next  sitting,  if  greater  occasions  intervene 
not. 

VII.  \Vheu  any  order  is  agreed  upon,  the  clerk  of  the  council  attending, 
shall  take  notice  thereof  in  writing,  and  punctually  read,  openly,  how  he 
hath  conceived  the  sense  of  the  board,  that  if  anything  be  mistaken,  it 
may  then  be  reformed ;  and  afterwards  when  the  clerk  shall  have  drawn  the 
said  order  at  large,  in  any  cause  of  importance,  before  he  enter  the  same 
into  the  council  books,  or  deliver  it  to  any  person,  whom  it  may  concern, 
he  is  to  show  the  draught  to  the  President,  or,  in  his  absence,  to  one  of 
the  secretarys  of  state,  to  be  allowed  and  signed  under  one  of  their 
hands,  before  the  entry  and  delivery  thereof. 

OIL  July  22,  1664,  it  was  ''ordered  that  the  clerks  of  the 
council  do  take  care  for  the  future,  that  all  petitioners  who 
shall  exhibit  any  petition  to  the  board,  do  first  sign  the  same." 
While  this  order  refers  to  " petitions,"  regular  judicial  appeals 
were  included  within  its  provisions.  It  has  already  been 
observed  that  the  council  and  other  courts  of  the  time  did  not 
always  make  a  careful  distinction  between  a  petition  and  an 
appeal,  and  that  an  appeal  was  often  presented  to  the  consid 
eration  of  the  council  by  means  of  petition. 

In  1667  the  council  passed  two  orders  in  regard  to  its  pro 
cedure  in  judicial  affairs.  On  January  31  of  that  year  stand 
ing  committees  of  council  were  established  and  provisions  made 
for  their  regulation.  Additions  to  this  order  soon  became  nec 
essary,  and  on  February  12  a  second  decree  was  passed.  This 
order  recites  that — 

His  Majesty,  having  among  other  the  important  parts  of  his  affairs, 
taken  into  his  princely  consideration  the  way  and  method  of  managing 
matters  at  his  Council-board  and  reflecting  that  his  Councils  would  have 
more  reputation  if  they  were  put  into  a  more  settled  and  established 
course,  hath  thought  tit  to  appoint  certain  standing  committees  of  the 
Council  for  several  businesses:  together  with  regular  days  and  places  for 
their  assembling,  in  such  sort  as  followeth : — A  committee  for  the  business 
of  trade,  under  whose  consideration  is  to  come  whatsoever  concerns  his 
Majesty's  foreign  plantations,  as  also  what  relates  to  his  kingdoms  of 
Scotland  or  Ireland,  in  such  matters  only  relating  to  either  of  those  king 
doms  a  properly  belong  to  the  cognizance  of  the  Council-board,  the  isles 
of  Jersey  and  Guernsey  which  is  to  consist  of  the  Lords  Privy  Seal,  Duke 
of  Bucks,  Duke  of  Ormond,  Earl  of  Ossory,  Earl  of  Bridgwater,  Earl  of 
Anglesey,  Earl  of  Lauderdaill,  Lord  Arlington,  Lord  Holies,  Lord  Ashley, 
Mr.  Comptroller,  Mr.  Vice  Chamberlain,  Mr.  Secretary  Morice,  Sir  William 
Coventry  j  the  usual  day  of  meeting  to  be  every  Thursday  in  the  Council- 


348  AMERICAN    HISTORICAL    ASSOCIATION. 

chamber,  and  oftener,  as  lie  that  presides  shall  direct;  and  hereof  three  or 
more  of  them  to  be  a  quorum.  And  it  is  further  ordered  that  this  com 
mittee  calling  unto  them  his  Majesty's  Attorney-General  or  else  his 
Majesty's  Advocate  do  henceforward  hear  all  causes  that  byway  of  appeal 
come  from  the  isles  of  Jersey  and  Guernsey.  The  orders  whereupon  being 
in  due  form  prepared  by  the  Clerk  of  the  Council  are,  before  they  are 
signed,  to  be  read  at  the  Council-board,  and  there  approved  of,  so  that 
they  may  receive  the  approbation  and  authority  of  the  whole  Council, 
which  before  used  to  pass  distinctly  from  the  Committee  only  by  a  deriva 
tive  power  from  the  Board. 

The  system  as  thus  outlined  continued  until  January  27, 
1687,  when  it  was  ordered  that  not  only  a  certain  number,  but 
all  of  the  lords  of  the  privy  council  be  appointed  a  standing 
committee  on  trade  and  foreign  plantations.  But  it  appears 
that  this  return  to  the  early  method  of  adjudicating  appeals 
did  not  result  successfully.  A  further  change,  therefore,  be 
came  necessary,  and  on  December  10, 1696,  an  order  was  passed 
which  recites  that— 

His  Majesty  having  this  day  taken  into  his  Royall  consideration  the 
matter  of  hearing  appeals  from  the  Plantations,  is  pleased  to  direct  and 
order  in  councill  that  all  appeales  from  any  of  the  Plantations  be  heard 
as  formerly  by  a  committee,  who  are  to  report  the  matters  so  heard  by 
them,  with  their  opinion  thereupon,  to  his  Majestic  in  couucill.  And  in 
order  thereunto  his  Majestie  did  declare  his  further  pleasure,  that  all  the 
Lords  of  the  councill,  or  any  three  or  more  of  them,  be  appointed  a  com 
mittee  for  that  purpose. 

It  will  be  noticed  that  under  the  provisions  of  this  order  all 
of  the  lords  of  the  council  might  still  act  as  a  committee  on 
hearing  appeals  from  the  colonial  courts.  But  whatever  the 
number  of  privy  councillors  serving  on  this  committee,  whether 
the  whole  council  or  only  three  members,  it  had  only  a  com 
mittee's  powers  and  was  required  to  make  its  report  to  the 
council  itself. 

A  brief  reference  must  now  be  made  to  the  manner  of  pre 
senting  colonial  appeal  cases  before  this  committee.1 

According  to  an  order  of  October  31,  1689,  it  was  declared 
that  thereafter  "  there  be  not  admitted  above  two  council  to 
be  heard  on  a  side  in  any  cause  at  this  board,  and  but  one 
allowed  on  each  side  for  reading  such  evidences  and  proofs2 
as  there  shall  be  occasion  to  make  use  of." 

'A  committee  with  simi]ar  functions  is  now  (1895)  known  as  the  Judi 
cial  Committee  of  the  Privy  Council. 

2  Copies  of  records  and  other  proceedings  were  brought  from  the  colonies 
when  appeal  cases  were  adjudicated  by  the  King  in  council. 


APPEALS    FROM    COLONIAL    COURTS — HAZELTINE.    349 

It  appears  that  prior  to  1727  the  meetings  of  the  committee 
were  frequently  put  off'  because  of  the  failure  of  counsel  to  be 
present  and  argue  their  cases.  Delays  were  thereby  caused 
which  resulted  in  the  obstruction  of  justice  and  the  detriment 
of  the  suitors.  To  stop  this  practice  the  lords  of  the  commit 
tee,  on  January  18,  1727,  ordered  that— 

When  a  day  shall  be  appointed  to  hear  any  appeals  or  complaints  either 
from  the  plantations  or  from  the  Isles  of  Jersey  and  Guernsey,  or  for  any 
other  cause  or  causes  depending  before  this  committee,  such  pretence  of 
want  of  counsel  shall  not  be  allowed  of  us  as  a  reason  to  defer  the  hearing 
thereof.  Whereof  all  persons  concerned  in  soliciting  causes  before  this 
committee  are  to  take  notice  and  govern  themselves  accordingly. 

On  March  10,  1730,  the  King  in  council  passed  an  order 
which  recites  that — 

Whereas  a  practice  hath  of  late  been  introduced  by  parties  who  have 
causes  depending  before  the  council,  to  print  and  deliver  a  state  of  their 
case  to  every  privy  councillor  at  the  time  of  hearing  of  the  said  causes, 
which  printed  cases  have  not  been  signed  by  any  counsel  learned  at  law. 
And  whereas  the  same  hath  been  represented  to  his  Majesty  at  this  board 
as  a  very  irregular  and  improper  way  of  proceeding:  His  Majesty  this 
day  took  the  same  into  his  royal  consideration,  and  being  desirous  to  pre 
vent  the  like  practices  for  the  future,  is  hereby  pleased,  with  the  advice 
of  his  Privy  Council,  to  order  that  no  person  whatsoever  do  presume  to 
deliver  any  printed  case  or  cases  to  any  Lords  of  the  council,  or  any  com 
mittee  thereof,  unless  such  case  or  cases  shall  be  signed  by  one  or  more  of 
the  counsel,  Avho  shall  attend  at  the  hearing  of  the  cause. 

Furthermore,  when  causes  were  argued  upon  printed  points, 
or  heads  of  argument,  which  were  handed  up  to  the  members 
of  the  committee  as  j  udges,  the  rule  was  to  pass  a  copy  to  the 
counsel  of  the  adverse  party.  It  was  usually  customary  for 
the  counsel  to  note  on  the  margin  of  this  copy  his  own  stric 
tures  upon  the  argument  of  his  opponent,  and  to  use  the  copy, 
with  these  marginal  notes,  as  a  minute  by  which  to  reply  to 
the  line  of  argument  therein  contained.  Sir  John  Strange 
and  Sir  Dudley  Eider  used  these  printed  points  in  arguing  the 
case  of  Phillips  v.  Savage  in  1738.1 

On  April  21, 1746,  it  was  ordered  by  the  lords  of  the  com 
mittee  of  council  for  plantation  affairs  that  "when  appeals 
or  other  causes  are  put  upon  the  list  of  business  for  hear 
ing  before  this  committee,  that  the  party  or  parties  at  whose 
request  such  appeal  or  cause  is  set  down,  shall  be  in  readiness 
to  be  heard  whenever  their  Lordships  shall  appoint  a  day." 
An  additional  order  was  passed  by  the  lords  of  the  committee 

1  Massachusetts  Historical  Society  Proceedings,  1860-1862,  p.  167. 


350  AMERICAN    HISTORICAL    ASSOCIATION. 

011  July  9, 1751.  It  stipulates  that  when  "the  said  appeals  or 
causes  shall  have  been  so  put  upon  the  list  of  business  for 
hearing,  the  same  be  heard  in  the  course  they  are  so  set  down, 
without  any  further  notice,  order,  or  direction  of  the  commit 
tee  for  that  purpose." 

It  is  plain  that  the  method  of  procedure  was  a  careful  one. 
Every  appeal [  was  referred  to  the  privy  council's  committee  on 
plantation  affairs,  and  before  the  lords  of  this  committee  the 
case  was  carefully  and  fully  tried.  But  the  lords  of  the  com 
mittee  did  not  always  rely  upon  their  own  judgment  alone. 
They  frequently  referred  cases  to  the  lords  commissioners 
for  trade  and  plantations;  and  these  commissioners,  in  turn, 
often  sought  the  advice  of  the  attorney  and  solicitor  general.2 
Reports  were  then  returned  from  board  to  board  until  the 
committee  011  plantation  affairs  made  its  report  to  the  Xing 
and  the  entire  council.  The  council's  advice  upon  the  report 
was  -then  obtained,  and  the  King,  acting  upon  this  advice, 
issued  the  final  decree  in  the  form  of  an  order  in  council,  either 
affirming,  reversing,3  or  otherwise  revising  the  decision  of  the 
colonial  court.  In  conclusion  it  need  only  be  said  that  dur 
ing  the  period  with  which  we  have  been  concerned  in  the 
present  inquiry,  the  King  in  council  was  a  tribunal  well 
adapted  for  the  adjudication  of  colonial  appeal  cases.  Not 
only  its  personnel,  but  its  very  procedure  insured  justice  to 
both  appellant  and  appellee.  Certainly  no  other  English  insti 
tution  of  the  time  could  have  exercised  more  adequately  or 
satisfactorily  than  did  this  "honorable  and  reverend  assembly 
of  the  King  and  his  privy  council"  the  functions  of  a  tribunal 
with  appellate  jurisdiction  over  the  courts  of  Rhode  Island  and 
the  other  American  colonies.  It  was  a  noble  predecessor  of  a 
still  nobler  tribunal,  the  Supreme  Court  of  the  United  States. 

1  Either  in  chancery  or  in  common  law. 

2  Douglass's  Summary,  I. 

3  After  the  report  of  the  committee,  affirming  or  reversing  the  judgment 
appealed  from,  had  been  confirmed  by  the  King  in  council,  a  rehearing  was 
not  granted.     In  Perm  v.  Lord  Baltimore,  on  a  petition  by  the  plaintiffs  for 
a  rehearing,  the  committee  reported  that  there  was  no  instance  of  rehearing 
on  an  appeal,  which  would  be  mischievous,  unless  on  some  very  particular 
circumstances,  such  as  the  discovery  of  new  evidence  or  fraud ;  and  the 
petition  was  therefore  rejected.     (See  Burge's  Colonial  Law,  I,  Introd.,  p. 
Ixxvii.) 


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